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2023 DIGILAW 172 (AP)

Padavala Tirumala Rao v. State of Andhra Pradesh

2023-01-23

K.SREENIVASA REDDY

body2023
ORDER : 1. This Criminal Revision Case is preferred by the petitioner/accused in C.C. No. 294 of 2013 on the file of the Special Judicial Magistrate of First Class (P&E)-cum-VIII A.M.M. and VIII Additional Junior Civil Judge, Visakhapatnam, being aggrieved by the order, dated 31.05.2022 passed in Crl. M.P. No. 778 of 2022, whereby the petition filed by the petitioner/accused under Section 311 of the Code of Criminal Procedure, 1973 for reopening of DW-2 evidence, which was eschewed on 06.04.2022, was dismissed. 2. The respondent No. 2 herein preferred complaint under Section 138 r/w 142 of the Negotiable Instruments Act, 1881 against the petitioner herein/accused in C.C. No. 294 of 2013. The said case when was coming up for evidence of the accused, he got examined the DW-2 in chief and she was partly cross-examined. For further cross-examination of DW-2 by the complainant, it was adjourned. But later DW-2 did not attend the Court and it was for a few adjournments. Finally on 06.4.2022, the Court below eschewed the evidence of DW-2 as she failed to attend the Court. 3. Then the accused herein moved an application under Section 311 Cr.P.C. to reopen the evidence of DW-2. The complainant filed his counter and opposed the said petition. The Court below, after hearing both sides, dismissed the said petition holding that the petition was filed by the petitioner without reasonable ground and is an abuse of the process of law, allowing such applications will not only be against the Rule of law, but, it also would be predicament of trial. Learned counsel for the petitioner herein contended that the petitioner moved application under Section 311 Cr.P.C. to recall DW-2 for cross-examination and on 06.4.2022 both the petitioner and his counsel sought for Passover of the said petition and started searching for the Advocate of the complainant to serve notice in another connected application wanted to be filed in the Court, and finally served it by 12.45 p.m. The learned counsel for respondent had endorsed therein that he prays time for counter. Thereafter immediately, the petitioner and his counsel returned to the Court at 1.00 P.M. and noticed that the Court has eschewed the evidence of the petitioner on the ground that the petitioner/accused did not follow the directions of the Court and there is no representation. Thereafter immediately, the petitioner and his counsel returned to the Court at 1.00 P.M. and noticed that the Court has eschewed the evidence of the petitioner on the ground that the petitioner/accused did not follow the directions of the Court and there is no representation. It is further submitted that DW-2 is a sick woman and she was affected by Covid for two times. Hence, the petitioner submits that he could not bring DW-2 and as such he filed the application which copy he served on that day of 06.4.2022 on the other side and it was to appoint Advocate Commissioner to record the cross-examination of DW-2. 4. Respondent No. 2 herein filed counter in the said Cri. M.P. No. 778 of 2022 opposing the said application stating that there is no provision to file an application for reversing the order passed by the same Court. He further stated that the Court below eschewed the evidence of DW-2 by passing detailed order on 06.4.2022 and as such it must be treated that there is no evidence of DW-2 available on record. Heard both sides and perused the record. 5. Section 311 of the Cr.P.C. reads thus: “Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summed as a witness or recall and reexamine any person already examined and the Court shall summon and examine or recall and respondent-examine any such person if his evidence appears to it to be essential to the just decision of the case.” The aforesaid provision consists of two parts viz. (1) giving discretion to the court to examine the witness at any stage and (2) the mandatory portion which compels a court to examine a witness if his evidence appears to be essential to the just decision of the case. 6. There cannot be any dispute that the power under Section 311 Cr.P.C. is a vast one. This power can be exercised at any stage of the trial. Such a power should be exercised provided the evidence which may be tendered by a witness is germane to the issue involved, or if proper evidence is not adduced or relevant material is not brought on record due to any inadvertence. This power can be exercised at any stage of the trial. Such a power should be exercised provided the evidence which may be tendered by a witness is germane to the issue involved, or if proper evidence is not adduced or relevant material is not brought on record due to any inadvertence. It hardly needs to be emphasized that power under Section 311 Cr.P.C. should be exercised for the just decision of the case. Whether to exercise the power or not, would depend upon the facts and circumstances of each case. 7. This Court is of the view that an opportunity can be given for the petitioner to produce his witness namely DW-2 by restoring her evidence in chief, which was eschewed by the trial Court and to permit her to be cross-examined. 8. Accordingly the Criminal Revision Case is allowed by setting aside the order, dated 31.05.2022 passed in Crl. M.P. No. 778 of 2022 by the Special Judicial Magistrate of First Class (P&E)-cum-VIII A.M.M. and VIII Additional Junior Civil Judge, Visakhapatnam. The petitioner is directed to produce DW-2 his witness on the date to be fixed by the learned trial Court within two weeks from the date of receipt of copy of this order. It is made clear that if the petitioner fails to produce DW-2 for cross-examination by the complainant/respondent No. 2 herein, on the date so fixed by the learned trial Court, as directed supra, the order, now granted will not enure to the benefit of the petitioner. 9. As a sequel, all the pending miscellaneous applications shall stand closed.