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TMI Blog2024 (1) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... g out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case. The power under Section 311 Code of Criminal Procedure must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right. - In present case, Trial Court, after going through statement Ex. DW-3/A and after taking into consideration evidence before i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being Cr.MP No.2 of 2018 before the trial Magistrate, when the case was pending for arguments. The said application was allowed by the Magistrate vide order dated 1.2.2018. 3. Criminal Revision Petition No.8 of 2018, titled as Gagnesh Thakur v. Vishal Awasthi, preferred by the complainant against the said order, stands dismissed by Additional Sessions Judge(II), Mandi, District Mandi, Himachal Pradesh, vide order dated 10.10.2018. 4. Present petition has been filed, invoking provisions of Section 482 Cr.P.C., assailing aforesaid orders for setting aside the same, by rejecting the prayer of the respondentaccused to lead further/additional evidence/ cross-examine the complainant. 5. I have heard learned counsel for the parties and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot put to Gagnesh Thakur. 9. In aforesaid circumstances, an application, under Section 311 Cr.P.C., was preferred on behalf of respondentaccused Gagnesh Thakur for leading additional evidence, i.e. to re-examine complainant Gagnesh Thakur, as well as to lead additional evidence of the concerned Banks. 10. The aforesaid application was opposed by Gagnesh Thakur by filing reply to the application. However, after taking into consideration the material placed on record, the Magistrate allowed the application. 11. Section 311 Cr.P.C. reads as under: 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of the widest discretionary power under Section 311 Code of Criminal Procedure should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated. 14.3 If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person. 14.4 The exercise of power under Section 311 Code of Criminal Procedure should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case. 14.5 The exercise of the said power cannot be dubbed as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results. 14.12 The additional evidence must not be received as a disguise or to change the nature of the case against any of the party. 14.13 The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party. 14.14 The power under Section 311 Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer conferred upon the Court under Section 311 Cr.P.C. is a discretionary power to be exercised to arrive at a just decision in order to do substantial justice to establish rule of law. 17. In the Revision Petition as well as in present petition, main ground for opposing the application, filed under Section 311 Cr.P.C., is that the said application was filed at a belated stage only to linger on the trial. 18. Though it has been contended that proposed defence was not mentioned in the application filed by the accused under Section 145(2) of the NI Act for crossexamination of the witness, and no such plea with respect to the defence, proposed to be brought on record now, was pleaded or recorded, and that at this belated stage applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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