Gaurav Kumar Singh vs State Of Jharkhand

Anil Kumar Choudhary, J

Heard the parties.

Though  notice  has  validly  been  served  upon  the  opposite  party No.2-complainant  yet  no  one  turns  up  on  behalf  of  the  opposite  party No.2-complainant in spite of repeated calls.

This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court  under  Section 528  of the  B.N.S.S.,  2023  with the  prayer  to  quash the  order  dated  09.05.2025  passed  by  the learned Judicial Magistrate-1st Class, Palamau at Daltonganj in connection with Complaint Case No. 1354 of 2020 involving the offence punishable under Section 138 of the Negotiable Instruments Act whereby and where  under the  learned court below allowed  the  petition  filed  by the complainant and recalled the earlier order dated 16.03.2024 by  which the evidence of the complainant had been closed.

The brief fact of the case is that the petitioner is an accused of Complaint Case No. 1354 of 2020 involving the offence punishable under  Section  138  of  the  Negotiable  Instruments  Act.  The  evidence  of the complainant was closed without examination of the witnesses vide order dated 16.03.2024, hence, the complainant filed a petition dated 18.05.2024 for recalling the  said order and to  allow the complainant  to examine his witnesses. The said petition  was taken up on 09.05.2025 by  the  learned  Judicial  Magistrate-1st Class,  Palamau  at  Daltonganj  in Complaint Case No. 1354 of 2020 and the said prayer was allow subject to payment of cost of Rs.2,000/- by the complainant.

Learned counsel for the petitioner submits that once the evidence  of  the  prosecution  is  closed,  the  same  could  not  be  recorded except under exceptional circumstances. Learned counsel for the petitioner  relies upon the  judgment  of  the  Hon’ble Supreme Court  of India in the case of K.K. Velusamy vs. N. Palanisamy reported in (2011) 11 SCC 275 and submits that therein, in the facts of that case which involved the original civil suit, the Hon’ble Supreme Court of India has held that in the absence of any provision providing for reopening of  evidence  or recall of  any witness for further  examination or cross-examination, for purposes other than securing clarification required by the court, the inherent power under Section 151 of the Code of Civil Procedure subject to its limitations, can be invoked in appropriate cases to reopen the evidence and/or recall witnesses for further examination. Hence, it  is submitted that the prayer as prayed for in this Criminal Miscellaneous Petition be allowed.

Learned Addl.P.P. appearing for the State on the other hand vehemently  oppose  the  prayer  of  the  petitioner  made  in  this  Criminal Miscellaneous  Petition  and  submits  that  the  submissions  made  by  the petitioner is misconceived. This being a criminal proceeding, the procedural  law  applicable  is  the  Code  of  Criminal  Procedure  and  not the  Code  of  Civil  Procedure.  It  is  next  submitted  that  there  is  specific procedure  in  the  Code  of  Criminal  Procedure  vesting  power  upon  the trial court for permitting examination of the witnesses, if their evidence is required for the just decisions of the case; even by reopening the evidence  of  the  complainant.  It  is  then  submitted  that  the  undisputed fact remains that the witnesses who have been permitted to be examined  by  the  learned  Judicial  Magistrate,  are  the  witnesses  whose evidence is required for the just decision of the case. It is lastly submitted that no illegality has been committed by the learned Judicial Magistrate-1st Class, Palamau at Daltonganj in allowing the petition. Hence,  it  is  submitted  that this  Criminal  Miscellaneous  Petition,  being without any merit, be dismissed.

Having heard the rival submission made at the Bar and after carefully going through the materials available in the record, this Court finds that the undisputed fact remains that the evidence of the witnesses sought to be examined by the complainant, is required for the just decision of the case.

Under such circumstances, the examination of such witnesses having been allowed by the learned Judicial Magistrate-1st Class, Palamau at Daltonganj by recalling its earlier  order  by which  it closed the evidence of the prosecution, this Court is of the considered view that this Court do not find any justifiable reason to quash the order dated 09.05.2025 passed by the learned Judicial Magistrate-1st Class, Palamau at Daltonganj in connection with Complaint Case No. 1354 of 2020, in exercise of its power under Section 528 of the B.N.S.S., 2023.

Accordingly, this Criminal Miscellaneous Petition, being without any merit, is dismissed.