AI Structured Summary
Not yet generated for this judgment
Judgment
Heard Mr. Sishir Dutta, learned Senior Counsel for the petitioner assisted by Mr. S Dutta. Also heard Mr. C K Nath, learned counsel for the sole respondent.
This revision has been directed against the Order dated 23.03.2026, whereby the application of the accused/petitioner to recall the order dated 18.03.2025 closing the evidence of the accused/petitioner, was rejected by the Court of Judicial Magistrate First Class, Kamrup(M) in CR(NI) case No. 6360/2018.
The sole respondent herein had instituted the above proceeding under the Negotiable Instruments Act before the learned Court below in respect of a cheque allegedly issued by the present petitioner which was however dishonored. The trial of the case proceeded in course of which the sole respondent herein/complainant adduced prosecution evidence. However, the accused/petitioner herein failed to adduce defence evidence, which came to be closed by order dated 18-03-2025. Subsequently, an application for recalling the order closing the defence evidence was filed, however, the same was rejected by the impugned order dated 23-03-2026.
The challenge herein lies within a narrow compass, concerning the legality of the impugned order closing the defence evidence and the subsequent refusal of the learned Magistrate to recall the said order. The issue can be better appreciated by reproducing herein the impugned order dated 23.03.2026:
“The complainant is present.
The accused is absent. The Ld Advocate for the accused vide petition no 2758/25 has stated that due to ill health of the accused he is absent toady and ha prayed to dispense with his appearance.
The prayer is allowed.
The Ld Advocate for the accused vide petition no 2754/25 has stated that the accused has all along been diligently contesting the present case. However on 18/03/2025 the previously engaged counsel of the accused person without any instructions from the accused submitted before the court to close the evidence of the PWs, for which this court closed the evidence of the PWs. The accused was never intimated about that order passed by this court, closing the defense evidence. Due to such orders, the accused will be severely prejudiced as he will not be able to rebut the averments made by the complainant.
Accordingly the Ld Advocate for the accused has prayed to recall the order dated 18/03/2025 whereby the evidence of defense was closed and to grant one opportunity to the accused to examine himself as defense witness.
Heard the Ld advocates for both the sides.
The Ld Advocate for the complainant has objected to the prayer made by the Ld Advocate for the accused in petition no 2754/25.
On going through the case record it appears that since 27/11/2024 the accused remained absent though the case was fixed for DW evidence.
Due to absence of the accused on four consecutive dates a non bailable warrant of arrest was issued against the accused and on issuance for NBWA only the accused appeared before the court on 13/06/2025 and prayed to allow him to remain on his previous bail and to recall the NBWA. The accused undertook to remain present on all the subsequent dates for which the prayer of the accused to recall the NBWA was allowed and also allowed him to remain on his previous bail. But since then again the accused remained absent on the next there consecutive dates for which again NBWA was issued against the accused. Again on issuance of NBWA the accused appeared before the court on 20/12/2025 and prayed to allow him to remain on his previous bail and to recall the NBWA and again undertook to remain present on all the subsequent dates for which the prayer of the accused to recall the NBWA was allowed and also allowed him to remain on his previous bail.
But again after 20/12/2025 the accused remained absent before the court.
The complainant has already argued the matter. And the case is pending at the stage of argument from the side of the accused.
Finally on 11/03/2026 the accused appeared along with his new set of advocates and today the Ld Advocate for the accused has filed a petition no 2754/25.
Though it is written in the petition 2754/25 that the accused has all along being diligently contesting the present case but from the above conduct of the accused it appears that he is trying to cause delay in disposal of the present case.
The newly engaged Ld Advocate Pranam Borah has stated that the previously engaged advocate for the accused inadvertently submitted to close the evidence of PWs.
But from the conduct of the accused it appears that there was no inadvertence on the part of the Ld engaged advocate for the accused and the conducted of the accused compelled his Ld engaged counsel to pray for closure of DW evidence before the court.
The averment of the present Ld Advocate for the accused that the order dated 18/03/2025 closing the defense evidence will be severely prejudiced to the accused is not convincing as the accused got ample opportunities to adduce defense evidence and he willfully abstain himself from adducing DW evidence as each time only on the issuance of NBWA only he used to appear before the court.
Considering so, the prayer made in petition no 2754/25 is rejected.
I have heard the argument from the complainant on 06/05/2025 and since then the case is pending for argument of the accused only.
Now also the accused is trying to cause delay in disposal of the case.
However, the accused is directed to appear before the court on the next date positively in person and argue the case.
Fix 27/04/2026 for argument/ appearance of the accused.”
Mr. S Dutta, learned counsel for the petitioner, submits that the learned counsel who was representing the accused/petitioner at the relevant time ought not to have made a submission for the closure of the defence evidence in the absence of any instructions from the accused/petitioner. It is submitted that the proper course of action on the part of the learned counsel would have been to withdraw from the case, if no instructions were available from his client, who had failed to appear before the Court on consecutive dates.
It is the further submission of the learned senior counsel that the right of the accused to adduce evidence is a very valuable right and the learned Magistrate ought to have invoked the power under Section 311 Cr.P.C to allow the accused petitioner to adduce his evidence. In support of his submission, learned senior counsel has relied upon the decision of the Apex Court in Rajaram Prasad Yadav vs State of Bihar & Anr., (2013) 14 SCC 461.
Per Contra, the learned counsel for the respondent submits that after closure of prosecution evidence, the defence statement under Section 313 Cr.P.C was recorded in the month of November 2024, and, despite several opportunities, the accused/petitioner remained absent, necessitating the issuance of NBWA against him on more than one occasion. The accused petitioner has been attempting to delay the disposal of the case for the last two years and the learned Magistrate had therefore, after recording the sequence of events, rightly passed the impugned order. It is the further submission of the learned counsel that a criminal court does not possess the power to recall its order. Learned counsel further submits that Section 311 Cr.P.C deals with the recalling of witnesses already examined or the summoning of new witnesses, but does not confer any power of review upon a criminal court. Since the defence evidence was closed by order dated 18-03-2025, the criminal court has no power to recall the said order as prayed for in the application filed by the accused petitioner before the learned Magistrate.
I have given my anxious consideration to the rival submissions.
In the case of Rajaram Prasad Yadav (supra), the Hon’ble Apex Court held as follows:-
“14.A conspicuous reading of Section 311 Cr.P.C. would show that widest of the powers have been invested with the Courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. A reading of the provision shows that the expression “any” has been used as a pre-fix to “court”, “inquiry”, “trial”, “other proceeding”, “person as a witness”, “person in attendance though not summoned as a witness”, and “person already examined”. By using the said expression “any” as a pre-fix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied by the Court was only in relation to such evidence that appears to the Court to be essential for the just decision of the case. Section 138 of the Evidence Act, prescribed the order of examination of a witness in the Court. Order of re-examination is also prescribed calling for such a witness so desired for such re-examination. Therefore, a reading of Section 311 Cr.P.C. and Section 138 Evidence Act, insofar as it comes to the question of a criminal trial, the order of re-examination at the desire of any person under Section 138, will have to necessarily be in consonance with the prescription contained in Section 311 Cr.P.C. It is, therefore, imperative that the invocation of Section 311 Cr.P.C. and its application in a particular case can be ordered by the Court, only by bearing in mind the object and purport of the said provision, namely, for achieving a just decision of the case as noted by us earlier. The power vested under the said provision is made available to any Court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as witness or to recall or re-examine any person already examined. Insofar as recalling and re-examination of any person already examined, the Court must necessarily consider and ensure that such recall and re-examination of any person, appears in the view of the Court to be essential for the just decision of the case. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re-examined has to be ascertained. To put it differently, while such a widest power is invested with the Court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution.
15.In this context, we also wish to make a reference to certain decisions rendered by this Court on the interpretation of Section 311 Cr.P.C. where, this Court highlighted as to the basic principles which are to be borne in mind, while dealing with an application under Section 311 Cr.P.C.
15.1.In the decision reported in Jamatraj Kewalji Govani vs. State of Maharashtra - AIR 1968 SC 178, this Court held as under in paragraph 14:-
“14.It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and makes this the duty and obligation of the Court provided the just decision of the case demands it. In other words, where the court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case. If the court has acted without the requirements of a just decision, the action is open to criticism but if the court's action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction.”
115.2.In the decision reported in Mohanlal Shamji Soni vs. Union of India and another - 1991 Suppl.(1) SCC 271, this Court again highlighted the importance of the power to be exercised under Section 311 Cr.P.C. as under in paragraph 10:-
“10….In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted whereunder any court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re- examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated.”
15.3.In the decision in Raj Deo Sharma (II) vs. State of Bihar - 1999 (7) SCC 604, the proposition has been reiterated as under in paragraph 9:-
“9.We may observe that the power of the court as envisaged in Section 311 of the Code of Criminal Procedure has not been curtailed by this Court. Neither in the decision of the five-Judge Bench in A.R. Antulay case nor in Kartar Singh case such power has been restricted for achieving speedy trial. In other words, even if the prosecution evidence is closed in compliance with the directions contained in the main judgment it is still open to the prosecution to invoke the powers of the court under Section 311 of the Code. We make it clear that if evidence of any witness appears to the court to be essential to the just decision of the case it is the duty of the court to summon and examine or recall and re-examine any such person.”
15.4.In U.T. of Dadra and Nagar Haveli and Anr. vs. Fatehsinh Mohansinh Chauhan - 2006 (7) SCC 529, the decision has been further elucidated as under in paragraph 15:-
“15.A conspectus of authorities referred to above would show that the principle is well settled that the exercise of power under Section 311 CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case, this being the primary duty of a criminal court. Calling a witness or re-examining a witness already examined for the purpose of finding out the truth in order to enable the court to arrive at a just decision of the case cannot be dubbed as “filling in a lacuna in the prosecution case” unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused resulting in miscarriage of justice.”
15.5.In Iddar & Ors. vs. Aabida & Anr. - AIR 2007 SC 3029, the object underlying under Section 311 Cr.P.C., has been stated as under in paragraph 11:-
“11.The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is ‘at any stage of inquiry or trial or other proceeding under this Code’. It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind.”
15.6.In P. Sanjeeva Rao vs. State of A.P.- AIR 2012 SC 2242, the scope of Section 311 Cr.P.C. has been highlighted by making reference to an earlier decision of this Court and also with particular reference to the case, which was dealt with in that decision in paragraphs 13 and 16, which are as under:-
“13.Grant of fairest opportunity to the accused to prove his innocence was the object of every fair trial, observed this Court in Hoffman Andreas v. Inspector of Customs, Amritsar (2000) 10 SCC 430. The following passage is in this regard apposite:
“In such circumstances, if the new counsel thought to have the material witnesses further examined, the Court could adopt latitude and a liberal view in the interest of justice, particularly when the court has unbridled powers in the matter as enshrined in Section 311 of the Code. After all the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible.”
We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined-in-chief about an incident that is nearly seven years old. Delay takes a heavy toll on the human memory apart from breeding cynicism about the efficacy of the judicial system to decide cases within a reasonably foreseeable time period. To that extent the apprehension expressed by Mr. Rawal, that the prosecution may suffer prejudice on account of a belated recall, may not be wholly without any basis. Having said that, we are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to cross-examine the witnesses, we would prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself.”
What transpires from a reading of the authorities discussed above is that in a criminal trial, the accused must be given every opportunity to have his say and a liberal approach is to be adopted so as to ensure a fair trial, although in the process some inconvenience or prejudice may be caused to the prosecution. The opportunity to adduce defence evidence may, in most cases, particularly in a case of this nature i.e., arising under the Negotiable Instruments Act, be the only weapon in the hands of the accused to have a fair chance of rebutting the prosecution evidence, which is already aided by the availability of statutory presumption.
It is true that the accused/petitioner has been absolutely remiss in his conduct, as the consecutive issuance of NBWAs and failure of the petitioner to appear before the Court would readily reveal. But having said that, the fact remains that in the absence of defence evidence, the trial would in effect be a walkover for the prosecution, which is the very antithesis of a fair trial.
Furthermore, I find force in the submission of the learned senior counsel for the petitioner that if the accused had failed to appear on consecutive dates and the learned counsel representing the accused had no instructions from his client, i.e., the accused, the proper course of action would have been for the said learned counsel to have withdrawn from the case and not to have made a submission to the Court to close the defence evidence. Ordinarily, of course, an Advocate is presumed to be acting under the instructions of his client, but on an issue of such grave importance and consequence for the accused, namely the closure of the defence evidence, in the absence of specific instructions to that effect, it was perhaps not proper for the learned counsel to have submitted before the Court to close the defense evidence.
While it is true to contend that no power of review has been conferred upon a criminal court, and although the application for recalling the order dated 18-03-2025 filed by the accused was not specifically under section 311 Cr.P.C., the fact remains that under the aforesaid provision, it is well within the powers of the Court to summon witnesses whose evidence is essential for a just decision of the case. It cannot be anybody's case that the evidence of defence witnesses is not essential for a just decision of the case. Mere failure to quote the relevant statutory provision would not disentitle the applicant to a relief which he otherwise deserves.
Moreover, it has been specifically held in Rajaram Prasad Yadav (supra) that even after the closure of the prosecution evidence, such power can be exercised. Therefore, while exercising powers under Section 311 CrP.C., the Court is not exercising, strictly speaking, a power of review, but is exercising an independent power granted by the aforesaid provision to a criminal court. Moreover, it is also a settled position of law that if the conditions under Section 311 Cr.P.C are satisfied, the Court can call a witness not only on the motion of either of the prosecution or the defence, but may do so even on its own motion.
In view of the above discussion, I am of the view that one last opportunity may be granted to the petitioner/accused to adduce defence evidence. However, the complainant, whose case has been inordinately delayed by the actions of the accused also needs to be compensated to some extent. Accordingly, I deem it fit to allow the instant revision by setting aside the impugned order dated 23-03-2026 and directing the learned Magistrate to record the defence evidence, if offered, subject to payment of a costs of Rs. 10,000/- to the complainant, the sole respondent herein, before the recording of such defence evidence.
The petitioner/accused as well as the complainant/the sole respondent herein are directed to appear before the learned trial court within a period of 7 (seven) days from today, whereafter the defence witnesses, if any, presented by the accused, shall be examined by the learned trial court, and the said exercise shall be completed within a period of 14 (fourteen) days from the date of appearance of the parties before the learned trial court pursuant to the instant order.
It is made clear that, under no circumstances, any further opportunity shall be granted to the accused beyond the aforesaid period of 14 (fourteen) days to present defence evidence. It is further made clear that in the event the complainant seeks an adjournment on any ground, the same shall be considered on merits by the learned trial court.
The revision stands disposed of in terms of the aforesaid directions.