Calcutta High Court: In revisional applications challenging an order passed by the Metropolitan Magistrate, rejecting the petitioner’s application under Section 311 of the Criminal Procedure Code, 1973 (CrPC) in connection with complaint cases under Section 138 read with Section 141 of the Negotiable Instrument Act, 1881, a single-judge bench comprising of Subhendu Samanta,* J., held that the rejection of the application under Section 311 of the CrPC was justified, considering the nature of evidence sought and lack of sufficient explanation for the delay. The Court held that rejection of the application under Section 311 is an interlocutory order and criminal revision is not maintainable against an interlocutory order.
Factual Matrix
In the instant matter, the petitioner filed a complaint case against the opposite parties, alleging the commission of an offense under Section 138 read with Section 141 of the Negotiable Instrument Act. The complaint stemmed from a loan provided by the petitioner to the opposite parties, who issued cheques to repay the loan. However, these cheques were dishonored due to insufficient funds in the opposite parties’ accounts, leading to a legal dispute.
During the trial, PW-1 was examined-in-chief, and cross-examined by the opposite parties. Subsequently, the petitioner filed an application under Section 311 CrPC, seeking to recall and re-examine PW-1 to present computerized bank statements as additional evidence. The application was rejected by the Metropolitan Magistrate vide order dated 22-06-2018. Aggrieved by the impugned order, the petitioner challenged the same by preferring four revisional applications with similar facts and issues which are consolidated for brevity.
Parties’ Contentions
The petitioner argued that the rejection of the application was erroneous. It was contended that the Magistrate allegedly misunderstood the petitioner’s intention, as the additional evidence was crucial to establishing the transfer of the loan amount to the opposite parties’ accounts. The petitioner emphasised that the application did not introduce new facts but aimed to provide necessary evidence to clarify existing facts. The petitioner argued that Section 311 of the CrPC empowers the court to summon or recall a witness if their evidence is essential to the just decision of the case. The petitioner contended that the rejection of the application violated the principles underlying Section 311 of the CrPC.
The opposite party argued that the rejection of the application was justified, pointing out a significant delay of over six years in filing the application. It was claimed that the petitioner intentionally withheld the bank statements earlier and was attempting to introduce them at a belated stage, thereby making it a new case under Section 311 of the CrPC.
Court’s Assessment
The Court examined the facts, emphasising that Section 311 of the CrPC is meant to ensure a just decision and not to permit parties to fill gaps in their case. The Court emphasised that the court’s power was under Section 311 of the CrPC. must be exercised judiciously to meet the ends of justice. The Court reaffirmed that the court’s power must be exercised cautiously, not as a disguise for retrial or to prejudice any party.
“Section 311 permits any court at any stage of an enquiry, trial or other proceeding summon any person as a witness, or examined any person in attendance, though not summoned as a witness, or recall and re-examine, any person already examine; and the court shall summon and examine or recall and re-examine in such “if his evidence appears to be essential to the just decision of the case”.”
The Court acknowledged that inherent powers under Section 482 cannot be used to override the express bar on revision of interlocutory orders under Section 397(2) of the CrPC. The Court opined that the rejection of the application was deemed an interlocutory order, and cited Sethuraman v. Raja Manickchand, (2009) 5 SCC 153 and Girish Kumar Suneja v. CBI, (2017) 14 SCC 809, to assert that revisions against interlocutory orders are not maintainable under Section 397(2) of the CrPC.
“…the order of rejection of an application u/s 311 CrPC is truly an interlocutory order. According to the provision of Section 397(2) CrPC. of a criminal revision is not maintainable against an interlocutory order.”
The Court rejected the contention that the rejection of application was a mere oversight or lacuna, affirming the Magistrate’s discretion to deny the application. The Court held that the rejection was not erroneous, as the petitioner failed to provide a sufficient explanation for the delay in filing the application and did not adequately specify the “other documents” mentioned in the application. Therefore, the Court dismissed the criminal revisions, stating that the Magistrate committed no error in passing the impugned order.
Legal Principles
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Section 311 of the CrPC grants wide discretionary power to the court to summon, examine, recall, or re-examine any person if their evidence is essential to the just decision of the case.
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Exercise of Section 311 power should be judicious, not arbitrary, and invoked for the discovery of relevant facts or proper proof, ensuring justice without causing prejudice.
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Revision against interlocutory orders is barred under Section 397(2) of the CrPC and Section 482 of the CrPC cannot be used to circumvent this bar.
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The Court must not interfere with interlocutory orders under Section 482 of the CrPC unless there is no specific provision for redress in the Code, and such interference is necessary to prevent abuse of process or ensure justice.
Disposition:
The Court dismissed the criminal revisions, citing the bar under Section 397(2) of the CrPC, and any connected applications were disposed of. Any order of stay previously granted during the pendency of the revision was vacated.
[Mahima Management Services (P) Ltd. v. Creative Property Developers (P) Ltd., 2024 SCC OnLine Cal 939, order dated 01-02-2024]
*Judgment by Justice Subhendu Samanta
Advocates who appeared in this case :
Ms. Aiswariya Gupta, Ms. Priyanka Saha, Counsel for the Petitioner
Mr. Agnibesh Sengupta, Mr. Tirthankar Dey, Ms. Atasi Sarkar, Counsel for the Opposite Party
Mr. Narayan Prasad Agarwala, Mr. Pratick Bose, Counsel for the State
Buy Code of Criminal Procedure, 1973 HERE
