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TMI Blog2024 (4) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... tify a new application with the same prayer to be filed afresh. The judgment of the High Court of Bombay in U.T. OF DADRA AND HAVELI AND ORS. VERSUS FATEHSINH MOHANSINH CHAUHAN [ 2006 (8) TMI 684 - SUPREME COURT] cannot come to the aid of the petitioner, as in the said case, the earlier application under Section 311 of the Cr. P.C. seeking recall of PW2 therein, had been filed by the complainant therein. However, the same was withdrawn by the complainant. Within four days thereof, the prosecution filed an application seeking recall of four witnesses, including PW2, contending that these witnesses had earlier deposed due to threats received by them from the accused. It was in those peculiar facts, that the High Court of Bombay upheld the Order of the learned Trial Court therein allowing the application of the prosecution. The application in question in the present case has been, admittedly, filed at a belated stage. It appears to be an afterthought. It only makes vague averments, and is also bereft of any explanation with regard to such delay. The learned Trial Court has also correctly observed that the petitioner has failed to file such documents with the complaint(s) itself or at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entioned petitions filed by the respondents. 8. The respondents filed their reply to the above application on 09.10.2019. 9. The said application filed under Section 311 of the Cr. P.C. was withdrawn by the petitioner on 23.10.2019. 10. The petitioner closed his evidence on 03.03.2020. 11. The statement of the respondents/accused under Section 313 of the Cr. P.C. was recorded on 10.12.2021, and as they did not wish to lead any evidence in their defence, the matter was put up for final arguments, as is recorded in the order dated 14.12.2021. 12. It is at this stage, that the petitioner filed the above application under Section 311 of the Cr. P.C., on 11.01.2022, wishing to place on record copies of the petitions filed by the accused/respondents herein under Section 482 of the Cr. P.C. before this Court, along with the documents filed therein; the counter affidavit(s) and the rejoinder(s) filed in those proceedings; copy of the Order dated 18.02.2019 of this Court passed in the said petitions; and e-mail correspondences between the complainant and the accused, which, to the own assertion of the petitioner, formed part of the counter(s) filed to the petitions by the respondents herein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scope of Section 311 of the Cr. P.C. is wide and is to be exercised in the interest of justice; it could be both in favour of and against the accused. In support, he places reliance on the judgment of the Allahabad High Court in Inayat v. Rex 1949 SCC OnLine All 110. 19. He submits that even where some evidence is inadvertently left out, in the interest of justice, such evidence should be allowed to be brought on record to find the truth. In support, he places reliance on the judgment of the Madhya Pradesh High Court in Smt. Fatima Hyder v. State of M.P. Ors., (Judgment dated 08.09.1992 in Misc. Cri.C.No. 2812 of 1992); of the High Court of Madras in Kesava Pillai and Ors. v. Emperor, 1929 SCC OnLine Mad 111; and of the Sikkim High Court in State of Sikkim v. Pemba Sherpa, 1980 SCC OnLine Sikk 7. 20. He submits that as the documents sought to be relied upon were filed by the respondents themselves, therefore, it cannot be a case of filling up a lacuna in the trial. He submits that such evidence is essential for the learned Trial Court to arrive at a just decision and should not be shut out merely on the grounds of delay or laches. He submits that the object should be to reach the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. 25. Section 311 of the Cr. P.C. is a salutary provision which empowers the Court to 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, if his evidence appears to it, to be essential to the just decision of the case. It is aimed at empowering the Court to find out the truth and to render a just decision. The object of the provision is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society. Having said that, it is to be kept in mind that this power is discretionary, and is to be exercised only for strong and valid reasons, and with caution and circumspection. Recall of a witness cannot be a matter of course. Recently, in Satbir Singh v. State of Haryana, 2023 SCC OnLine SC 1086, the Supreme Court carried out a study on the precedents on Section 311 of the Cr. P.C., a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the 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 any 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. 20. In State (NCT of Delhi) v. Shiv Kumar Yadav (2016) 2 SCC 402, it was held thus : Certainly, recall could be permitted if essential for the just decision, but not on such consideration as has been adopted in the present case. Mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on was sounded in Swapan Kumar Chatterjee v. Central Bureau of Investigation, (2019) 14 SCC 328 as under: 10. The first part of this section which is permissive gives purely discretionary authority to the criminal court and enables it at any stage of inquiry, trial or other proceedings under the Code to act in one of the three ways, namely, (i) to summon any person as a witness; or (ii) to examine any person in attendance, though not summoned as a witness; or (iii) to recall and re-examine any person already examined. The second part, which is mandatory, imposes an obligation on the court (i) to summon and examine or (ii) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. 11. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eking recall of PW2 therein, had been filed by the complainant therein. However, the same was withdrawn by the complainant. Within four days thereof, the prosecution filed an application seeking recall of four witnesses, including PW2, contending that these witnesses had earlier deposed due to threats received by them from the accused. It was in those peculiar facts, that the High Court of Bombay upheld the Order of the learned Trial Court therein allowing the application of the prosecution. 29. Similarly, in Boby @ Sanjeev Singh (supra), the High Court of Madhya Pradesh, in fact, reiterated that successive applications for recall of a witness under Section 311 of the Cr. P.C. are not maintainable. The High Court, however, in the peculiar facts of the said case, upheld the Order of the learned Trial Court therein, allowing the application filed by the PW3 therein for his re-examination due to the change in circumstances, inasmuch as, post the dismissal of the earlier application, the learned Trial Court therein after holding an inquiry from the then City Superintendent of Police, and after calling the report of handwriting expert from the State Examination, came to the conclusion t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application of the petitioner to place on record the said documents would amount to re-opening the trial and would derail the proceedings which have already been dragged on for over seven years and will defeat the very purpose and object of the provision. Reference in this regard can be made to directions issued by the Supreme Court in its judgment in Expeditious Trial of Cases Under Section 138 of NI Act, 1881, In re, (2021) 16 SCC 116. 34. Another important consideration which weighs with this Court is that, as held by the Supreme Court in P. Mohanraj v. Shah Bros. Ispat (P) Ltd., (2021) 6 SCC 258, an offence under Section 138 of the NI Act is almost in the nature of a civil wrong which has been given criminal overtones. It can be said to be a civil sheep in a criminal wolf s clothing , as it is the interest of the complainant/victim that is sought to be protected, the larger interest of the State being subsumed in the complainant/victim alone moving a court in cheque bouncing cases. It was further observed that it is really a hybrid provision to enforce payment under a bounced cheque. The Supreme Court has clarified that the gravity of proceedings under Section 138 of the NI Act ..... 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