The right to cross-examine a key witness is fundamental for ensuring a fair trial, which may necessitate recalling a witness despite previous rejections.

ORDER

07.08.2025 Order No.

03. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).

2. Heard learned counsel for the Petitioner as well as the leaned counsel appearing for the complainant. Perused the CRLMC Application as well as the documents annexed thereto.

3. By filing the present application under section 482 Cr.P.C., the Petitioner has challenged the order dated 05.07.2024 passed by the learned S.D.J.M.(S), Cuttack thereby rejecting the application filed under section 311 Cr.P.C. to recall P.W.1 (complainant) for cross-examination in I.C.C.Case No.129 of 2018.

4. Learned counsel for the Petitioner at the outset contended that the present case arises out of a proceeding under section 138 of the N.I.Act. He further contended that during trial, learned counsel for the Petitioner could not cross-examine the complainant, who is a prime witness in the case of present nature, as a result of which vide order dated 28.10.2022 the prayer for time to cross-examine the complainant was rejected and the cross-examination of the complainant was dispensed with under section 309(2) Cr.P.C.. Thereafter, the Petitioner filed an application under section 311 Cr.P.C. on 21.04.2023 with a prayer to recall the complainant for his cross-examination. In the said application at Annexure-1 the accused-Petitioner has stated that since the conducting counsel had gone to his village on an urgent work, he could not conduct cross-examination. Accordingly, a time petition was filed through a lawyer friend of the conducting counsel seeking time. Such time petition was illegally rejected and the matter was posted for recording of accused statement. Thereafter, the case was transferred to the court of the learned S.D.J.M.(S), Cuttack. 5. Before the learned J.M.F.C.(CT), Cuttack an application under section 311 Cr.P.C. was filed to recall P.W.1(complainant) for further cross-examination. On such application under section 311 Cr.P.C. it appears that the said application was disposed of vide order dated 07.04.2023 on the ground that the learned magistrate has no power to recall his own order and that since the evidence from the side of the complainant has been closed, there is no further scope to recall the complainant for his further cross-examination. After rejection of application under section 311 Cr.P.C. on 07.04.2023, the Petitioner once again filed another application under section 311 Cr.P.C on 21.04.2023. On 05.07.2024 learned magistrate took up the application and disposed of on the very same day thereby rejecting the prayer of the Petitioner to recall the complainant for his further cross-examination. In his order dated 05.07.2024 similar ground has been recorded as has been done in the order dated 07.04.2023. Being aggrieved by the aforesaid order, the Petitioner has approached this Court by filing the present application.

5. Learned counsel appearing for the informant on the other hand seriously objected to the prayer of the Petitioner to recall the complainant for his further cross-examination. Learned counsel for the informant further contended that the Petition under section 311 Cr.P.C. has been filed repeatedly at the instance of the Petitioner only with an intention to prolong the trial. He further submitted that once the application has been rejected, learned trial court has no power to recall he order. Therefore, the learned magistrate has not committed any illegality in rejecting the application under section 311 Cr.P.C. by passing the impugned order dated 05.07.2024 in I.C.C.Case No.129 of 2018.

6. Having heard learned counsels of the respective parties, on a careful examination of the background facts as well as the materials on record, further on a close scrutiny of the order dated 05.07.2024, this Court is of the considered view that the learned magistrate has not committed any illegality in rejecting the application as it appears from