Sec. 242(3) crpc in maintenance case

My view points are as below;

First the Words and Phrases are defined as follows;

"Enabling provisions" gives appropriate officials the authority to implement or enforce the law. Powers here are under special provisions.

"Compelling provisions" are those through which appropriate officials derives its power to compel a person and enforce the law. Powers here are under general provisions.

Second the respective Sections of The Code are stated to be as follows;

S. 242 (3) CrPC states as follows;

“242. Evidence for prosecution.

(1) XXX

(2) XXX

(3) On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution:

Provided that the Magistrate may permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination.”

S. 311 CrPC states as follows;

“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 its a witness, or examine any person in attendance, though not 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.”

Application of Law in hand:-

1. A bare perusal of S. 311 of Cr.P.C. makes it clear that the powers under S.  311 of Cr.P.C. have been given to the Court to examine, or re-examine any person as a witness, if that court considers it necessary to do so for the just decision of the case.

2. If the S. 311 of Cr.P.C. is read with S. 165 of Indian Evidence Act, it would be clear that the power under S. 311 of CR.P.C. and S. 165 of Indian Evidence Act “are conferred on the Court and not on the parties" and therefore, it is the Court alone which can exercise the powers under S. 311 of Cr.P.C, if the Court is of the opinion that it is necessary to do so for the just decision of the case.

3. Viewed in light of para 2 above, if the powers under S. 311 of Cr.P.C. are used by the Court for the purpose of enabling any party to examine or re-examine the witness, it would be impermissible to do so. Of Course, the Court has unfettered powers to examine and re-examine any witness under S. 311 of Cr.P.C at any time.

4. Now, if we see, a bare reading of Sub. S. 3 of S. 242 of the Cr.P.C. shows that the Magistrate conducting trial is empowered to defer the cross examination of any prosecution witness or witnesses who have been examined or recall any witness for further cross examination. The powers given by Sub. S. 3 of S. 242 of Cr.P.C. "are judicial powers" and must be exercised in a judicial manner. Besides, the provisions contained in Sub-S. 3 of S. 242 of Cr.P.C. are in the nature of special provisions, therefore, the general provisions contained in S. 311 of Cr.P.C cannot be invoked by the accused for recalling any witness for cross examination.

5. The power to summon the witness for the purpose of examination or re-examination, cross-examination or further cross-examination is to be exercised under S. 311 of Cr.P.C. and S. 165 of Indian Evidence Act "by the Court and not by the parties". Therefore, it is the Court alone which can exercise the powers under S. 311 of Cr.P.C. if the Court is of the opinion that it was necessary to do so for the just decision of the case. Viewed in this light, if the powers under S. 311 of Cr.P.C. are used by the Court for the purpose of enabling any party to examine or re-examine the witness, it would be impermissible to do so. Of course, the Court has unfettered powers to examine and re-examine any witness under S. 311 of Cr.P.C. at any time.

6. Hence, it is open for the parties to move an application under Sub S. 3 of S. 242 of Cr.P.C. for getting the witnesses summoned for the purpose of further cross examination. That is a general provision enabling the Court to summon witness for the purpose of further cross examination but the powers under S. 311 of Cr.P.C. can be exercised by the Court alone and not by the parties which is the major difference in case in hand.

7. Also note S. 125 CrPC (old S. 488 of The Code) is purposefully included in The Code as it is declared later by the Hon'ble SC to be quasi - civil / quasi - criminal benevolent provision for maintenance to wife, widow DIL, compassionate grounds appointed DIL to FIL / MIL, children and old parents by person of means.

However if above reply were superficially or concretely stated for your understanding that you may find only after its correct usage in case in hand.

So till then keep challenging confusion in mind omitting the already laid as in above interpretation in law on asked question to us.

Thanks a lot Sindia sir, for cmprehansive details.Let me know am I right in applying to  court in sec.242(3) and 311 crpc to find out truth ,to decide judiciously in case u/s 125 crpc against myself.

I wish to relate  that in cases of maintenance it is generally generous /liberal tendency is adopted towards women ignoring truth and reality.Court seems more humane rather than judicious.That is the reason behind applying in both these sections.However u/s 311crpc court might not pay any heed but section 242(3) Crpc is not as easy to ignore.