Full Text
HIGH COURT OF DELHI
Date of Decision: 27.03.2024
DALJEET SINGH SAINI ..... Petitioner
Through: Mr.Mohd. Bilal, Adv.
Through: Mr.Satinder Singh Bawa, APP
NAVIN CHAWLA, J. (ORAL)
JUDGMENT
1. Allowed, subject to all just exceptions. CRL.M.C. 2446/2024 & CRL.M.A. 9321/2024
2. This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (in short, ‘Cr.P.C.’), challenging the order dated 21.12.2023 passed by the learned Additional Sessions Judge-05, South West District, Dwarka, Delhi in Criminal Revision No.513/2020, titled Daljeet Singh Saini v. Gulbadan Panwar, dismissing the same as being not maintainable.
3. The petitioner also challenges the order dated 02.09.2022 passed by the learned Metropolitan Magistrate (NIA)-02/South West District, Dwarka Courts, Delhi in Misc. Cases/4305/2017, Gulbadan Panwar v. Daljeet Singh Saini, dismissing the application under Section 311 of the Cr. P.C filed by the petitioner herein, who is the accused in the said case filed by the respondent no. 2 under Section 138 of the Negotiable Instruments Act, 1881.
4. The learned counsel for the petitioner submits that the above application had been dismissed only because the earlier counsel did not appear when the matter was called. There was a request for a pass-over made, which was declined by the learned Metropolitan Magistrate.
5. He submits that further cross-examination of the complainant is essential inasmuch as the vital questions have not been put to the complainant, which would prejudice the case of the petitioner herein.
6. I have considered the submission made by the learned counsel for the petitioner.
7. In the complaint case, evidence of the complainant was recorded on 12.11.2021. On 13.12.2021, the statement of petitioner under Section 313 of the Cr. P.C. was recorded. The case was thereafter listed for recording of the evidence on behalf of the petitioner. It is at that stage, that the petitioner filed an application under Section 311 of the Cr.P.C., seeking recall of the complainant for further cross-examination. The ground urged in the application is rather vague, and is reproduced herein below:
legal liability to pay anything to the complainant and it cannot be proved unless and until the accused/ applicant is allowed by this Hon’ble Court to cross examine the complainant properly by granting only one opportunity.
4. That the applicant/accused is the victim in the present case and the complainant has misused his cheques by misusing the process of law with mala tide intention and ulterior motives.”
8. Apart from the above, the application merely parrots the ground on which the application under Section 311 of the Cr.P.C. is normally allowed by a Court. The application, therefore, lacks material particulars.
9. The application came to be dismissed by the learned Trial Court vide its order dated 02.09.2022. The detailed order that has been passed by the learned Metropolitan Magistrate is not placed on record. This itself shows the callous nature of the present petitioner.
10. It is well settled that power under Section 311 of the Cr.P.C. is exercised sparingly and in the interest of justice. In Ratanlal v. Prahlad Jat, (2017) 9 SCC 340, the Supreme Court has held as under:
only from the point of view of the accused and the prosecution but also from the point of view of an orderly society. This power is to be exercised only for strong and valid reasons and it should be exercised with caution and circumspection. Recall is not a matter of course and the discretion given to the court has to be exercised judicially to prevent failure of justice. Therefore, the reasons for exercising this power should be spelt out in the order.
18. In Vijay Kumar v. State of U.P. (2011) 8 SCC 136, this Court while explaining scope and ambit of Section 311 has held as under: th
19. In Zahira Habibullah Sheikh (5) v. State of Gujarat (2006) 3 SCC 374, this Court has considered the concept underlying under Section 311 as under:
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. Mere observation that recall was necessary “for ensuring fair trial” is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial. Having regard to these considerations, there is no ground to justify the recall of witnesses already examined.
21. The delay in filing the application is one of the important factors which has to be explained in the application. In Umar Mohammad v. State of Rajasthan (2007) 14 SCC 711, this Court has held as under:
”
11. In Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328, the Supreme Court has held as under:
12. The above view in Ratanlal (Supra) and Swapan Kumar Chatterjee (Supra) has been reiterated by the Supreme Court in Satbir Singh v. State of Haryana, 2023 SCC OnLine SC 1086.
13. It appears that the only reason for filing of the application under Section 311 of the Cr.P.C. was the change of counsel by the petitioner. This cannot be a valid ground for recall of the witness. Reference in this regard may be made to the judgement of the Supreme Court in State of Haryana v. Ram Mehar & Ors., (2016) 8 SCC 762.
14. In view of the above, I find no merits in the present petition. The same is accordingly dismissed. Pending application is also disposed of.