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2011 Supreme(P&H) 277
2011(2) RCR(Cri) 696
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
ALOK SINGH, J.
Rajinder Kumar -Petitioner
Versus
Vijay Kumar -Respondent
Crl. Revision No. 2907 of 2010 (O&M)
Decided on: January 24, 2011
Advocate Appeared:
Ms. Kamana Kapoor, Advocate, for the petitioner.
The main legal point established in the judgment is the interpretation and application of Section 311 of the Code of Criminal Procedure, emphasizing the discretionary power and obligation of the court in recalling a witness for further cross-examination.
Headnote:
Section 311 - Code of Criminal Procedure - The court discusses the discretionary power and obligation imposed by Section 311 of the Code of Criminal Procedure in the context of recalling a witness for further cross-examination in a case under Section 138 of the Negotiable Instruments Act.
Fact of the Case:
The accused filed a petition to challenge the rejection of their application to recall the complainant for further cross-examination in a case under Section 138 of the Negotiable Instruments Act.
Finding of the Court:
The court analyzed the provisions of Section 311 of the Code of Criminal Procedure, emphasizing the discretionary power and obligation of the court. It found that the trial court did not feel it necessary to summon and cross-examine the complainant, and therefore, the case fell within the first category of Section 311, giving judicial discretion to the court. The court also noted that the party moving the application under Section 311 must satisfy the court as to why the witness should be summoned and permitted to be further cross-examined.
Issues: The issues revolved around the interpretation and application of Section 311 of the Code of Criminal Procedure, specifically in the context of recalling a witness for further cross-examination.
Ratio Decidendi: The court's decision was influenced by the discretionary power and obligation imposed by Section 311 of the Code of Criminal Procedure. It emphasized the need for the party moving the application to satisfy the court as to why the witness should be summoned and permitted to be further cross-examined, and to provide a valid explanation for the delay in filing the application.
Final Decision: The court dismissed the petition, upholding the trial court's decision to reject the application to recall the complainant for further cross-examination.
Alok Singh, J. (Oral)
1. Present petition is filed by the accused assailing the order dated 28.09.2010 passed by learned Judicial Magistrate First Class, Jalandhar, thereby rejecting the application moved by the accused under Section 311 of the Code of Criminal Procedure for recalling the complainant for further cross-examination in a case under Section 138 of the Negotiable Instruments Act.
2. Record reveals that the complainant was examined in the year 2006 and his cross-examination was concluded in the year 2007. Thereafter, case was listed time to time for final arguments. Present application was moved in the year 2009 seeking recall of the complainant for further cross-examination to explain the facts regarding issuance of the cheque in question and its dishonour and intention behind.
3. Section 311 Code of Criminal Procedure reads as under :-
“311. Power to summon material witness, or examine person present.- Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.”
4. In the opinion of this Court, Section 311 of Code of Criminal Procedure is in two parts, one giving discretionary power to the Court and other imposing an obligation on it.
(A) First part of discretionary powers under which Court may,
(i) summon any person as witness, or
(ii) examine any person in attendance though not summoned as a witness, or
(iii) recall and re-examine any person already examined.
(B) Second part which imposes an obligation on the Court to summon and examine, re-examine or recall and re-examine, if his evidence appears to be essential to the just decision of the case.
5. In the present case, Trial Court does not feel it necessary to summon and to cross-examine the complainant, hence, the present case does not fall under the second category of Section 311 Cr.P.C. and falls within the first category of Section 311 Cr.P.C. which gives judicial discretion to the Court. Party moving an application under Section 311 Cr.P.C. calling the Court to exercise judicial discretion has to satisfy the Court as to why witness should be summoned and permitted to be further cross-examined. It is to be further shown as to why witness sought to be recalled was not properly cross-examined at the earlier stage. Judicial discretion of the Court should not be invoked by the party on vague and ambiguous grounds.
6. In the present case, cross-examination was concluded in the year 2007 and application under Section 311 Cr.P.C. was moved in the year 2009. No explanation has been furnished from the side of the revisionist-accused as to why application was not moved at the earliest and what are the points left to be cross-examined. Order impugned does not require any interference.
7. Dismissed.
