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TMI Blog2022 (5) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... amination-in-chief of the complainant happened by way of an affidavit on 12-12-2018. The matter was adjourned for cross-examination of the complainant from 12-12-2018 to 26.08.2019. The claim of the petitioner is that due to short of time, the advocate for the accused was not able to collect complete information with regard to the case. Lack of securing documents led to a cross-examination made by the counsel for the petitioner unfinished. Many questions that had to be put to the witness were omitted by the counsel is the primary ground that is urged. On the score that several questions were left out when the complainant was cross-examined on 26-08-2019, an application was filed by the petitioner seeking recall of PW-1 for further cross-examination on 26-11-2021 close to 2 years and 3 months after such cross-examination. The application submitted reads as follows: "APPLICATION UNDER SECTION 311 OF CR.P.C. It is respectfully submitted on behalf of the accused as follows: On the strength of Ex. P.01 complainant case is filed alleging false under section 138 of N.I. Act. This Hon'ble curt was kind enough to provide sufficient opportunity to cross-examination of PW-1. On 26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inant has filed this complaint for the offence punishable U/S. 138 of NI Act against the accused and evidence of the complainant is closed and his cross examination was completed on 26.08.2019 and on very same date 313 statement was recorded. Later accused has lead his evidence on 22.10.2019 and counsel for Complainant canvassed his arguments on 08.11.2021 and when case was posted for arguments on behalf of accused, this application is filed by the accused. Accused has contended that some of the vital aspects of the greater importance to defend the case of the prosecution could not have been brought on record at the time of cross examination of PW1. On perusal of cross examination of PW1 and defense evidence of the accused it discloses that the accused has cross examined complainant by covering many of the contentions raised by him as defense in his evidence on affidavit, moreover the accused has not narrated in which aspect he wants to cross examine the PW1, simply mentioning that some of the vital aspects of the greater importance to defend the case of the prosecution is not a justifiable ground to allow this application. 9. It is observed that accused has stated that, the situ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he complainant has commenced his arguments and the counsel for the petitioner had remained absent on several occasions. Noticing the fact that the application was filed at a belated stage, without even divulging as to what are the rival aspects with regard to the cross-examination have been omitted, rejects the application. 5. The submission of the learned counsel appearing for the petitioner is that the earlier counsel died due to COVID-19 and he had not effectively cross-examined the witness. It is his further submission that he is now on record in place of the earlier counsel and such cross-examination is imperative for advancing the case of the petitioner. The submission boils down to the counsel who had cross-examined but not effectively cross-examined the complainant and therefore, a further opportunity should be given. 6. Section 311 of the Cr.P.C. 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; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously. Before directing the learned Special Judge to examine Smt. Ruchi Saxena as a court witness, the High Court did not examine the reasons assigned by the learned Special Judge as to why it was not necessary to examine her as a court witness and has given the impugned direction without assigning any reason." 16. This principle has been further reiterated in Mannan Shaikh v. State of W.B. [Mannan Shaikh v. State of W.B., (2014) 13 SCC 59: (2014) 5 SCC (Cri.) 547] and thereafter in Ratanlal v. Prahlad Jat [Ratanlal v. Prahlad Jat, (2017) 9 SCC 340: (2017) 3 SCC (Cri.) 729] and Swapan Kumar Chatterjee v. CBI [Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328: (2019) 4 SCC (Cri.) 839]. The relevant paragraphs of Swapan Kumar Chatterjee [Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328: (2019) 4 SCC (Cri.) 839] are as under: (Swapan Kumar Chatterjee case [Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328: (2019) 4 SCC (Cri.) 839], SCC p. 331, paras 10-11) "10. The first part of this section which is permissive gives purely discretionary authority to the criminal court and e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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