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TMI Blog2022 (2) TMI 244X X X X Extracts X X X X X X X X Extracts X X X X ..... the court below is not as per the standard of law as prescribed under Section 311 of Cr.P.C. This Court deems it appropriate that the present petition be allowed and the trial court be directed to permit the petitioner to re-examine the witness - the trial Court is directed to give one effective opportunity to the petitioner to get to re-examine the witness and petitioner/accused shall bear the cost of witness which would be fixed by the learned trial court the trial court is free to impose condition as it thinks fit. Petition allowed. - CRMP No. 1278 of 2021 - - - Dated:- 2-2-2022 - Hon'ble Smt. Justice Rajani Dubey, Judge For the Petitioner : Ms. Smita Jha, Advocate For the Respondent No. 1 : Mr. Akash Pandey, P.L. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 of Negotiable Instruments Act. 3. During trial, petitioner/accused filed an application under Section 311 of Cr.P.C. because some important question was left on defence by earlier counsel but application of the petitioner was rejected on 30.08.2019 on the ground that accused had sufficient time and opportunity for cross-examination of complainant. Against the said order, petitioner filed revision before learned Additional Sessions Judge but the same was dismissed on 04.11.2019 by stating that it is not maintainable, hence this petition filed by the petitioner. 4. Learned counsel for the petitioner submits that the impugned order passed by the learned court is contrary to law and material available on record which deserves to be set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be essential to the just decision of the case. The section is manifestly in two parts. Whereas the word used in the first part is may , the second part uses shall . In consequences, 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 cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is at any stage of inquiry or trial or other proceeding under this Code . It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind. 26. As indicated above, the Section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation: it is, that the Court shall summon and examine all persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation of the petitioner on this ground that appointing a new counsel is not a ground of re-examination of the witness. The ground of dismissal of the application by the court below is not as per the standard of law as prescribed under Section 311 of Cr.P.C. This Court deems it appropriate that the present petition be allowed and the trial court be directed to permit the petitioner to re-examine the witness. 11. In view of the above, the petition is allowed. The trial Court is directed to give one effective opportunity to the petitioner to get to re-examine the witness and petitioner/accused shall bear the cost of witness which would be fixed by the learned trial court the trial court is free to impose condition as it thinks fit. 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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