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TMI Blog2022 (5) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... to protect himself or defend himself should be granted, this is the purport of Section 311 of the Cr.P.C. Section 311 of the Cr.P.C. mandates that the application can be preferred at any stage of proceedings. Thus in the light of the fact that the learned counsel appearing for the petitioner has not cross-examined the complainant at all, it is deemed appropriate to grant one more opportunity to the learned counsel for the petitioner to cross-examine PW-2 on a particular date and conclude the same on the said date. He shall not be entitled to file any application under Section 311 of the Cr.P.C. seeking recall or for further cross-examination of PW-2, but this would be on imposition of costs - petition allowed. - Criminal Petition No. 2734/2022 - - - Dated:- 12-4-2022 - Maheshan Nagaprasanna, J. For the Appellant : Abhijith M.M., Advocate ORDER The petitioner is before this Court calling in question proceedings in C.C. No. 13303/2013 with particular reference to the order dated 08.03.2022. 2. The petitioner is the accused. The respondent is the complainant. The transaction between the petitioner and the respondent lead to the petitioner-accused issuing certai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DATED.-4.10.2021 The learned counsel for the accused filed this application under Sec. 311 of Cr.P.C. seeking permission to further cross-examine of P.W. 2. 2. it is contended in the application that, on the previous hearing date, when the case of posted for cross examination of Pw:2, the senior counsel of the accused was held up in High Court of-Karnataka. So junior counsel for the accused has prayed for time to cross examination and same was rejected by the court and cross examination of witness was taken as nil. it is contended that accused has good case on merits and therefore cross examination of Pw:2 is very much necessary for just and proper decision. With these averments he prays to allow the petition. 3. The learned counsel for the complainant has not filed objection despite availing sufficient opportunity and they have remained absent before the court. Therefore, objection to above application was taken as nil. 4. Heard the arguments and perused the materials placed on record. 5. This is the private complaint filed against the accused for the offence punishable U/Sec. 138 of N.I. Act. On perusal of order sheet reveals that, original complainant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Therefore, the court was pleased to take cross examination of PW-2 as nil. It is significant to note that, the court has imposed condition while allowing previous application of the accused Filed U/s. 311 of Cr.P.C. and directed him to complete the cross examination of PW-2 on or before 30.11.2021. The accused did not cross examine PW-2 on or before 30.11.2021. This is not a case that, accused did not get opportunity to cross examine PW-2. This court has granted several adjournments to accused to cross examine PW-2 however, he did not utilized the same, well within time. Therefore, the successive application filed by the accused U/s. 311 of Cr.P.C. for recall of PW-2 deserve to be rejected. Hence, following. ORDER 2nd successive application filed by accused U/s. 311 of Cr.P.C. is hereby rejected. For 313 statement of accused by 10.03.2022. VI ASCJ and ACMM (emphasis supplied) The Court records that the earlier application was allowed and the petitioner was directed to cross-examine PW-2 on 30.11.2021, the same is utilised by the petitioner. 9. The fact remains that the learned counsel appearing for the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of the Code and the principles of criminal law. The discretionary power conferred under 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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