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2018 DIGILAW 771 (ORI)

Mayadhar Ghosh v. Nandini Ghosh

2018-08-28

S.K.SAHOO

body2018
JUDGMENT S.K. Sahoo, J. - Heard Mr. Arijeet Mishra, learned counsel for the petitioner. 2. None appears on behalf of the opposite party. 3. The petitioner Mayadhar Ghosh has filed this application under section 482 of Cr.P.C., 1973 challenging the impugned order dated 03.05.2014 passed by the learned J.M.F.C., Jajpur Road in Criminal Misc. Case No. 67 of 2013 in allowing the petition under section 311 of Cr.P.C., 1973 filed by the opposite party. 4. The first petition under section 311 of Cr.P.C., 1973 was filed by the opposite party-wife to recall D.W.3 for cross-examination on the ground that D.W.3 was not at all cross-examined by the counsel for the opposite party in the Court below and in the interest of justice, opportunity should be given to cross-examine D.W.3. It seems that the learned J.M.F.C., Jajpur Road after considering the petition filed by the opposite party-wife was of the view that the veracity of D.W.3 can be gathered by subjecting him to the test of cross-examination and accordingly, the learned Magistrate found it proper to give an opportunity to the opposite party to cross-examine D.W.3. 5. Though Mr. Mishra, learned counsel for the petitioner vehemently challenged the impugned order but ultimately submitted that he has no serious objection, if D.W.3 is allowed to be cross-examined by the opposite party. After going through the order dated 03.05.2014 which deals with recall of D.W.3, I also find that in the interest of justice the cross-examination of D.W.3 is necessary and therefore, I do not find any fault with the learned Magistrate in the order dated 03.05.2014 in accepting the prayer made in the petition filed by the opposite party-wife to recall D.W.3. Therefore, the learned J.M.F.C., Jajpur Road shall fix a date for cross-examination of D.W.3 and on that day, the petitioner shall produce D.W.3 before the Court. No summons be issued to D.W.3 in view of the submission made at the Bar by the learned counsel for the petitioner to produce D.W.3 in order to avoid delay in the conclusion of the proceeding. 6. So far as the other petition which has been filed by the opposite party under section 311 of Cr.P.C., 1973 for examining ten witnesses, it appears that after closure of the evidence from both the sides, such a petition has been filed by the opposite party and those ten witnesses are the family members of the petitioner. 6. So far as the other petition which has been filed by the opposite party under section 311 of Cr.P.C., 1973 for examining ten witnesses, it appears that after closure of the evidence from both the sides, such a petition has been filed by the opposite party and those ten witnesses are the family members of the petitioner. In the 311 Cr.P.C. petition, it is mentioned that all those witnesses are under the active control of the petitioner and therefore, the opposite party is not in a position to procure their attendance. The learned J.M.F.C., Jajpur Road after hearing both the sides held that since the witnesses could not be produced by the opposite party as they are the family members of the petitioner and under the active control of the petitioner, therefore, it would be prudent to summon the witnesses. 7. Mr. Mishra challenged the order dated 03.05.2014 in allowing such petition filed by the opposite party under section 311 Cr.P.C., 1973 and submitted that the just to delay the proceeding, such a petition has been filed after the closure of the evidence from both the sides and while giving a list of ten witnesses in the 311 Cr.P.C. petition, it has not been indicated in what way the evidence of those witnesses are relevant for the adjudicating the dispute between the parties. It is contended that there is no dearth of power with the Court to summon any witness at any stage of the proceeding before the judgment is pronounced, but in view of the settled position of law, such power to summon a witness or recall or re-examine a person already examined can be exercised only if the evidence of such witness appears to be essential for the just decision of the case. 8. It appears that the petition under section 311 of Cr.P.C., 1973 is lacking in material particulars as to in what way the examination of the ten witnesses is relevant and how their evidence would be necessary for the just decision of the case. The learned Magistrate has also not mentioned in the impugned order dated 03.05.2014 that the examination of such witnesses is necessary for the just decision of the case. The learned Magistrate has also not mentioned in the impugned order dated 03.05.2014 that the examination of such witnesses is necessary for the just decision of the case. Power under section 311 of Cr.P.C., 1973 must be exercised sparingly and that to only in suitable cases where in absence of the additional evidence, there would be failure of justice and the Court cannot arrive at the just decision of the case. Allowing the petition filed by the opposite party under section 311 of Cr.P.C., 1973 to summon ten witnesses after closure of evidence from both the sides in a casual manner reflects non-application of mind. 9. Therefore, I am of the view that the later part of the order dated 03.05.2014 in which the learned J.M.F.C., Jajpur Road has allowed the petition filed by the opposite party under section 311 of Cr.P.C., 1973 to summon ten witnesses as per the petition dated 07.04.2014 is not sustainable in the eye of law and accordingly, the same is set aside. The CRLMC application is disposed of. Urgent certified copy of this order be granted as per rules.