Magistrate Can Recall Non-Final Orders Closing Evidence in NI Act Cases J&K High Court

In a significant ruling, the High Court of Jammu & Kashmir and Ladakh has affirmed that a judicial magistrate possesses the power to recall a non-final order closing evidence in a complaint under Section 138 of the Negotiable Instruments Act, 1881. Justice Mohd Yousuf Wani set aside two orders of a trial magistrate that had shut the complainant's evidence and refused to recall that closure, directing instead that the complainant be allowed to examine two key witnesses—the bank manager and the postman—to ensure a just decision.

Setting the Stage: A Complaint Derailed by Pandemic and Counsel Changes

The dispute traces back to a complaint filed on 14 February 2020 by Abdul Hamid Bhat against Abdul Rashid Bhat for cheque dishonour under Section 138 NI Act. The proceedings were severely disrupted by the Covid-19 pandemic. Meanwhile, Bhat’s original counsel, Saqib Rasool, was appointed as a Prosecuting Officer, leading to his junior, Ms Farhat, taking over. Bhat alleged that Ms Farhat did not update him on the case and, due to inexperience, failed to produce necessary evidence. On 26 July 2023, the Judicial Magistrate closed Bhat’s evidence after no witnesses appeared despite numerous opportunities. Bhat only learned of this when Ms Farhat returned his brief upon her marriage. He then applied to recall the closure order to examine the bank manager and postman as material witnesses. The magistrate dismissed this application on 16 December 2024, reasoning that the complainant had failed to produce evidence despite many chances and that a magistrate cannot recall his own orders.

‘Alarming Order’ Required Before Closing Evidence: Court

Petitioner’s counsel Mr Bashir Ahmad Zargar argued that the closure was unjustified given the pandemic and counsel negligence, and he invoked Sections 311 and 362 of the Code of Criminal Procedure, 1973 (CrPC). He relied on the coordinate bench ruling in Farooq Ahmad Wani vs Tariq Ahmad Khan (2024), which held that a case’s age cannot alone bar examination of material witnesses. Respondent’s senior counsel Mr N.H. Shah countered that Bhat had nearly three years to produce evidence but failed to seek court assistance, calling the complaint frivolous.

The High Court found that the trial magistrate had not issued a prior warning order requiring Bhat to produce all evidence with a stipulation of closure in case of default. “The Ld. Trial Magistrate ought to have passed an alarming order prior to the closure of the evidence,” the court observed. It noted that Bhat had been represented by counsel at every hearing, so a clear warning was necessary before taking such a drastic step.

CrPC Sections 362 and 311 Apply to NI Act Proceedings

The court categorically rejected the magistrate’s belief that he lacked power to recall his own orders. Under Section 362 CrPC (corresponding to Section 403 BNSS), a criminal court can alter or review orders that are not final. Section 311 CrPC (Section 348 BNSS) empowers a court to summon or recall any witness at any stage if the evidence is essential for a just decision. These provisions, the court held, apply to NI Act complaints because Sections 142 to 148 of the NI Act start with a non-obstante clause—they override the CrPC on specific matters but do not displace the Code’s general procedural framework. “The provisions of Sections 362 and 311 of the Code cannot be said to be inapplicable to the proceedings of a complaint initiated under Section 138 of the NI Act,” Justice Wani stated.

Key Observations: Injustice Cannot Be Legalized

The court made several powerful observations. “Courts are respected not for legalizing injustice, but for removing the same,” it remarked. Criticising the trial court’s approach, it added: “The orders passed in a casual, hot haste, and cavalier manner, actually delay the proceedings as a consequence thereof.” On the recall power, the court noted: “The Ld. Magistrate could have exercised his powers under Section 362 of the Code to recall the order dated 26-7-2023, as there were justified grounds warranting the same.”

Final Verdict: Witnesses to be Examined, Orders Set Aside

Allowing the petition, the High Court set aside both impugned orders of the trial magistrate. It directed the magistrate to permit Abdul Hamid Bhat to produce and examine the bank manager and the postman as material witnesses. The court further ordered that if Bhat seeks the magistrate’s assistance in procuring their attendance, it shall be provided. The ruling reinforces that criminal courts retain the power to recall non-final orders to ensure justice, even in summary proceedings under the Negotiable Instruments Act, and that procedural shortcuts cannot be allowed to defeat the substantive right to a fair trial.