TMI Blog2019 (5) TMI 965X X X X Extracts X X X X X X X X Extracts X X X X ..... the evidence of any witness is essential, the Magistrate may record reasons and recall any witness - The facts in the present case would not fall within the second limb; it would fall within the first limb. The petitioner did not explain the reason for his failure to file documents at the earliest stage and PW.1 was only a power of Attorney Holder of the complainant, whereas the documents pertain to the period prior to execution of Power of Attorney in favour of PW.1 by the complainant. Therefore, PW.1, at best, is entitled to adduce evidence which is within his knowledge after execution of power of attorney, but the documents sought to be produced before the Court below are pertaining to the period prior to execution of General Power of Attorney in favour of PW.1. Therefore, he is not competent to speak about the documents which are sought to be produced by the petitioner - PW.1. However, this Court cannot exercise power under Section 311 of the Code to reopen the evidence of any witness. When the Calendar Case is posted for judgment, filing petitions for reopening etc. does not arise, since the duty of the Magistrate is to pronounce the judgment without involvement of peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... establish the case of complainant and, therefore, the GPA Holder requested to reopen the case and recall PW.1 by receiving the documents for marking the same. 4. Respondent No.2 - accused filed counter denying the material allegations, inter-alia , contending that no reason was assigned the purpose for which PW.1 is to be recalled and nothing has been stated satisfactorily in the petition as to why the complainant could not produce the documents at the appropriate stage and the main case is coming up for judgment, just one day before the date of judgment, the petitioner filed the aforesaid petitions with an intention to protract the proceedings for some more time and, finally, requested to dismiss all the petitions. 5. Considering the rival contentions, the Court below dismissed all the petitions, by way of a common order, dated 04.09.2018. 6. Aggrieved of the said order, the present Criminal Petitions are filed on the ground that sufficient opportunity is to be afforded to the petitioner to produce certain documents and to recall PW.1 for marking those documents by reopening the case as the said documents are essential to decide th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the petitions and requested to dismiss the petitions. 9. Undoubtedly, the evidence on behalf of the complainant was closed and the entire trial was completed, the Court heard the arguments and about to pronounce the judgment, the aforesaid petitions were filed before the Court below for one reason or other, more particularly, on the pretext that the complainant wanted to produce certain documents and the petitioner was already examined as a witness before the Court below and after completion of his evidence, one more witness was examined and closed the evidence on his behalf and later examination of accused under Section 313 of the Code was over and on reporting no evidence by the accused, the Court below closed the evidence. After hearing both sides, the case was posted for judgment and at that stage, the aforesaid petitions were filed on the ground that certain documents were not produced before the Court below which are essential to prove his case. 10. No doubt, Section 311 of the Code confers power on the Court to summon any witness or to examine any witness, who was present though not summoned or re-examine any witness subject to recording s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the revision petitioner is not in a position to point out any provision in the Code of Criminal Procedure that bars the Court from receiving any document in evidence, which was not filed along with the complaint. The absence of a provision mandating the complainant to annex all the documents which are relevant for the proof of the complainant's case or a provision requiring the complainant to list such documents in a separate list that could be appended with the complaint, as documents to be produced at a later point of time, will be enough to negative the contention of the revision petitioner that the complainant shall not be permitted to produce any document which was not produced along with the complaint, during the course of trial. 7. Of course, if the document is one based on which complaint itself has been preferred, the non-production of the same along with the complaint can be found fault with. When a relevant fact is sought to be proved by the production of such additional document, it must be considered leniently so that the opportunity to the complainant to prove his / her case shall not be denied without there being a reasonable ground for su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Code to reopen the evidence of any party to the proceeding, the Court cannot normally exercise such power unless it concludes that the evidence of witness was necessary for just decision. In the present case, the petitioner intended to produce certain documents which are listed along with the petition, such power can be exercised, but he is not entitled to adduce any evidence. Recall of a witness under Section 311 of the Code is for a limited period and when the proposed witness is not competent person to speak about the documents, his recalling is of no use, and apart from that, the material on record shows that when the case was already posted for judgment and at that stage, the petitioner cannot seek such a relief of reopening the case and recalling a witness in view of the judgment of Arjun Singh v. Mohindra Kumar AIR 1964 SC 993 , where the Apex Court had an occasion to consider the similar issue but on civil side and held thus: So far as the case before us is concerned the order under appeal cannot be sustained even on the basis that the finding recorded in disposing of an application under O. IX, r. 7 would operate as res judicata when the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
