ORDER

1. At the outset, learned counsel for the petitioner submits that he does not wish to challenge the order dated 6.7.2019 in view of bar contained on Clause (7), Chapter 10 of High Court of Madhya Pradesh Rules, 2008.

The petition is, accordingly, dismissed as not pressed in respect of order dated 6.7.2019 (supra). However, the petitioner shall be at liberty to assail the same in accordance with law.

As such, arguments heard in respect of order dated 29.5.2018 passed by JMFC, Gwalior in Case No. 3380/2016 assailed in this petition, under section 482 of the Code of Criminal Procedure, whereby petitioner's application under section 311, CrPC for recross examination of the complainant has been rejected.

2. Learned counsel for the petitioner submits that the cheque given by the petitioner by way of security has been presented by the complainant on 19.4.2018 before the Bank after filling up an amount of Rs. 25 lacs thereon. However, cross-examination of the complainant was over on 4.1.2018. As such, this being a subsequent development, petitioner was not in a position to cross-examine the complainant on that count. It is also noteworthy that dispute between petitioner and the complainant has been going on for last two years and, therefore, it is highly improbable that under such circumstances a cheque of Rs. 25 lacs would have been given by the applicant to the complainant. It is, accordingly, submitted that rejection of application under section 311, CrPC seeking recross-examination of the complainant for the aforesaid reasons has resulted in miscarriage of justice. It is crystal clear that under section 311 of CrPC, the Court has been empowered to summon a witness at any stage of an inquiry, trial or other proceeding. The power is not confined to a particular class of persons. It is also settled in law that if all the conditions under this section are satisfied, the Court can call the witnesses not only on the motion of either prosecution or defence, but also it can do so on its own motion. It is further submitted that power of a Court to recall any witness or witnesses already examined or to summon any witness, can be invoked even if evidence of both sides is closed so long as the Court retains seisin of the criminal proceedings.

3. Per contra, learned counsel for the respondent has supported the order passed by the trial Court and submits that the recorded therein being cogent, no interference is warranted therewith.

4. Heard, learned counsel for the parties.

5. The apex Court in the case of Iddar and others v. Aabida and another (JT 2007 (9) SC 552) has held as under :

"9. In this context, reference may be made to section 311 of the Code which reads as follows:

"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."

10. The section is manifestly in two parts. Whereas the word used in the first part is "may", the second part uses "shall". In consequence, the first part gives purely discretionary authority to a criminal Court and enables it at any stage of an enquiry, trial or proceeding under the Code : (a) to summon any one as a witness, or (b) to examine any person present in Court, or (c) to recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the Court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case. This is a supplementary provision enabling, and in certain circumstances imposing on the Court the duty of examining a material witness who would not be otherw