Recall of Accused U/s 311 of Crpc in 138 matter
Waseem
(Querist) 13 April 2011
This query is : Resolved
Sir,
I have a matter pending before magistrate court u/s 138 of negotiable instrument act wherein the defence evidence was closed by the Hon'ble Magistrate when the accused advocate has sought 3 adjourments and the magistrate has instructed the accused advocate to go on on with the defence evidence but the defence advocate did not obliged to it and the magistrate passed the order stating that the defence is trying dilatory tactics and closed the defence evidence and kept the matter for arguments. However the accused advocate made an application for recall of accused to record his evidence u/s 311 of Crpc. I would like to know whether the said application for recall of accused is maintable or not. Are there any Judgement which states that such application can be allowed or not.
Raj Kumar Makkad
(Expert) 13 April 2011
In the given facts, such application is not maintainable and it is nothing but an abuse of process of law. Application under section 311 cr.pc is applicable only when witness was examined and some important questions left to be asked from him. In the impugned matter, no defence evidence was examined and such evidence was closed by court order. If defence counsel wants to get his evidence recorded then he has only one option. he may file revision against the order closing his evidence before High Court.
Raj Kumar Makkad
(Expert) 13 April 2011
In the given facts, such application is not maintainable and it is nothing but an abuse of process of law. Application under section 311 cr.pc is applicable only when witness was examined and some important questions left to be asked from him. In the impugned matter, no defence evidence was examined and such evidence was closed by court order. If defence counsel wants to get his evidence recorded then he has only one option. he may file revision against the order closing his evidence before High Court.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 14 April 2011
The section 311 is for recall so not applicable in present case.
The accused is always before the court so no question of recall , he can be examined any time without recall application. If not allowed go to revision.
Arun Kumar Bhagat
(Expert) 14 April 2011
Recall is maintainable. An accused should be given every opportunity to prove his innocence.Learned Magistrate should give the accused an opportunity to tender defence evidence. I differ from the other expert's views.
