CASE TITLE:
Niektan Dilip Paldhe Vs. State of Maharashtra & Anr.
DATE OF ORDER:
29 November 2022
JUDGE(S):
Justice Amit Borkar
PARTIES:
Petitioner- Niketan Dilip Paldhe
Respondent- State of Maharashtra
IMPORTANT PROVISIONS
Code Of Criminal Procedure
Section 311- provides the court with the power 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.
SUBJECT
The Hon’ble High Court of Bombay held that statement made in cross examination can not be the basis to recall witnesses. The Single Judge Bench of the Hon’ble Court arrived at the above conclusion while hearing a case wherein the order of the learned Magistrate to allow a second application seeking recall of witness u/s 311 of CrPC was challenged by the petitioner. The Court while quashing the impugned order observed that discretion to allow such applications should be exercised judiciously and they should not be allowed as a matter of course.
BRIEF FACTS OF THE CASE
- The complainant, who is the respondent in the present case, filed an application under section 311 CrPC, which was allowed. Thereafter, the complainant examined himself and while he was being cross examined he said he has proof of his transaction with the accused which can serve as a documentary evidence for the same.
- On the basis of his statement in his cross examination, the complainant again filed an application u/s 311 CrPC with a view to seek recall of complainant himself to produce in evidence thetwo invoices that he claimed to have of the said transaction.
- The learned Magistrate allowed the application for the limited purpose of producing of invoices.
- The accused who is the petitioner in the present case has appeared before the present court to challenge the order passed by the Magistrate.
ARGUMENTS RAISED BY THE PETITIONER
- It was contended by the learned counsel for the petitioner that since the first application u/s 311 CrPC filed by the complainant was allowed, a second application under the same section should not be allowed again more so when the the statement of the accused had been recorded u/s 313 CrPC and the proceeding was fixed for final argument.
ARGUMENTS RAISED BY THE DEFENDANT
- It was contended by the learned counsel for the defendant that it was the accused who had called upon the complainant to produce those invoices in evidence. Under such circumstance, the Magistrate was justified in allowing the application.
ANALYSIS BY THE COURT
- After carefully perusing the factual scenario of the case, the Court observed that a suggestion in the cross examination by the accused wherein the complainant showed his willingness to produce on record the invoices does not creat any right in the favour of the complainant to file an application under section 311 of CrPC.
- The complainant had already been granted the opportunity to recall witness so as to bring on record any evidence material for the decision, when he filed the first application u/s 311.
- The court reiterated the well settled law regarding the power that has been conferred on the Magistrate u/s 311 of CrPC. It held that such power is to exercised by the Magistrate only in the cases if bona fide applications. Further, it should be exercised as a matter of course but the Magistrate should act judiciously so as to prevent injustice. The Court observed-“the discretion has to be exercised by the Court judiciously to prevent injustice unless there are tangible reasons to show how fairness of trial suffered without recall.”
- The Court also observed thatmere production of invoices would not allow them to be read in evidence. As a result, the complainant will then file another application to examine himself to prove the invoices which would lead to a re-trial of the case.
- The Hon’ble Court further refused to apply the ratio of Varsha Garg v. State of Madhya Pradesh [2022 SCC OnLine SC 986] as the facts of this case differed from the present case before this Court. In Varsha Garg’s case the document that was sought to be proved by the prosecution were crucial for fair trial of the accused. Moreover, the prosecution had only filed one application u/s 311 in that case.
CONCLUSION
In view of the above observation, the learned Judge held that the learned Magistrate has not exercised his discretion judiciously by allowing recall of complainant for producing the invoices. He thus quashed the impugned order of the learned Magistrate.
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