Page No.# 1/6 GAHC010223502023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Rev.P./435/2023 ANJANA DUTTA W/O SRI PRANJAL DUTTA R/O GOGAMUKH, P.O. AND P.S. GOGAMUKH, DIST. DHEMAJI, ASSAM PIN-787034 VERSUS THE STATE OF ASSAM AND ANR REP. BY THE LEARNED PP, ASSAM 2:SRI DEEPRANJAN KONWAR S/O LATE BHOLANATH KONWAR R/O KUKURAJUJ DHAKUWAKHANA GHOTPARA DIST. LAKHIMPUR ASSAM PIN-78705 Advocate for the Petitioner : MR. A CHAMUAH, MR. P K BHUYAN Advocate for the Respondent : PP, ASSAM, MS. M CHANGMAI (R-2),MR. S DIHINGIA (R-2) BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER Date : 24.06 . 2025 1. Heard Mr. A. Chamuah, learned counsel for the petitioner Smti Anjana Dutta, who has filed this application under Section 482 read with Section 401 of the Code of Criminal Procedure, 1973, (Cr.P.C. for short), challenging the order dated 16.09.2023, passed by the learned Addl. Chief Judicial Magistrate, Page No.# 2/6 Dhemaji in N.I. Case No. 08/2020 dismissing the petition under Section 311 Cr.P.C. with prayer to recall PW 1 to ask two specific questions. 2. Also heard Mr. B. Sarma, learned Addl. Public Prosecutor, Assam for the State respondent No. 1 and Mr. S. Dihingia, learned counsel for respondent No. 2. 3. It is submitted on behalf of the petitioner that when PW 4 was cross- examined, it has surfaced through his evidence that the respondent No. 2 despite being a Headmaster in a Government school was also running money lending business. When it has surfaced through the evidence that money was lent to the petitioner on interest as depicted by the evidence of the PW 4, the petitioner for clarification, at the stage of argument, filed an application under Section 311 Cr.P.C. to recall the witness to cross-examine PW-1 on two specific points. However, the learned Addl. CJM, Dhemaji dismissed the petition under Section 311 Cr. P.C. without assigning any reasons. 4. Annexure- 6 is the order impugned by the petitioner, which clearly reflects the order passed by the learned Addl. CJM, Dhemaji. Annexure- 5 is the petition which was rejected vide order dated 16.09.2023. 5. The respondent No. 2 has raised serious objection against the petition stating that the order under Section 311 Cr.P.C. is an interlocutory order and thus, this petition is not maintainable as this petition is a revision petition under Section 401 Cr. P.C. read with Section 482 of the Cr.P.C. 6. The learned counsel for the respondent No. 2 has relied upon the decision of the Hon’ble Supreme Court in the case of Amar Nath and Ors. Vs. State of Haryna and Anrs, reported in (1977) 4 SCC 137 wherein it has been observed as follows: Page No.# 3/6 “3. While we fully agree with the view taken by the learned Judge that where a revision to the High Court against the order of the Subordinate Judge is expressly barred under sub-section (2) of Section 397 of the 1973 Code the inherent powers contained in Section 482 would not be available to defeat the bar contained in Section 397 (2). Section 482 of the 1973 Code contains the inherent powers of the Court and does not confer any new powers but preserves the powers which the High Court already possessed. A harmonious construction of Sections 397 and 482 would lead to the irresistible conclusion that where a particular order is expressly barred under Section 397(2) and cannot be the subject of revision by the High Court, then to such a case the provisions of Section 482 would not apply. It is well settled that the inherent powers of the Court can ordinarily be exercised when there is no express provision on the subject-matter. Where there is an express provision, barring a particular remedy, the Court cannot resort to the exercise of inherent powers.” 7. The learned counsel for the respondent No. 2 has also relied upon the decision of the Hon’ble Supreme Court in the case of Girish Kumar Suneja Vs. Central Bureau of Investigation, reported in (2017) 14 SCC 809 wherein it has been observed as follows: “24. The second reason why Amar Nath is important is that it invokes the principle, in the context of criminal law, that what cannot be done directly cannot be done indirectly. Therefore, when Section 397(2) CrPC prohibits interference in respect of interlocutory orders, Section 482 CrPC cannot be availed of to achieve the same objective. In other words, since Section 397(2) CrPC prohibits interference with interlocutory orders, it would not be permissible to resort to Section 482 CrPC to set aside an interlocutory Page No.# 4/6 order. This is what this Court held: (SCC p. 140, para 3) “3. While we fully agree with the view taken by the learned Judge that where a revision to the High Court against the order of the Subordinate Judge is expressly barred under sub-section (2) of Section 397 of the 1973 Code the inherent powers contained in Section 482 would not be available to defeat the bar contained in Section 397 (2). Section 482 of the 1973 Code contains the inherent powers of the Court and does not confer any new powers but preserves the powers which the High Court already possessed. A harmonious construction of Sections 397 and 482 would lead to the irresistible conclusion that where a particular order is expressly barred under Section 397(2) and cannot be the subject of revision by the High Court, then to such a case the provisions of Section 482 would not apply. It is well settled that the inherent powers of the Court can ordinarily be exercised when there is no express provision on the subject-matter. Where there is an express provision, barring a particular remedy, the Court cannot resort to the exercise of inherent powers.” (Emphasis supplied) “25. This view was reaffirmed in Madhu Limaye when the following principles were approved in relation to Section 482 CrPC in the context of Section 397(2) thereof. The principles are: (SCC p. 555, para 8) "(1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party; Page No.# 5/6 (2) That it should be exercised very sparingly to prevent abuse of process of any court or otherwise to secure the ends of justice; (3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code." Therefore, it is quite clear that the prohibition in Section 397 CrPC will govern Section 482 thereof. We endorse this view.” 8. It is further contended on behalf of the respondent that the date of cross examination of PW 4 was 04.05.2022 whereas the petition under Section 311 Cr.P.C. was filed after a prolonged delay of 14 months i.e. on 15.07.2023. 9. This petition was filed with intent to fill up lacunae at the stage of argument. Since the date when the petition was filed, the case was pending at the stage of argument. Rather, this exercise has been an abuse of process of the Court. 10. In reply, the learned counsel for the petitioner has submitted that Section 311 Cr.P.C. affords the last possible opportunity to the defence to place their grievance before the court . The petitioner has specifically pointed out the question in her petition i.e. Annexure-5, which are to be asked to the complainant i.e. PW 1. 11. I have considered the submissions at the bar with circumspection. It is true that Section 482 Cr.P.C. is to be exercised sparingly and only to prevent the abuse of process of the court or to secure the ends of justice. It appears that an opportunity is to be accorded to the petitioner to specifically ask the questions which the petitioner believes would be necessary for her appropriate defecne. 12. Section 311 of the Cr.P.C. lays down:- Page No.# 6/6 “311. Power to summon material witness, or examine person presesent. _ Any Court may, at any stage of inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall or reexamine any persons already examined; and the Court shall summon or examine or recall or reexamine any such person if his evidence appears to it to be essential to the just decision of the case.” 13. It is true that the case is at the stage of argument but for proper adjudication of the matter, the petitioner is allowed to ask the question as follows which are mentioned in the petition: “(i) Source of in-flow of the cash that were given to the accused on loan; (ii) Whether the loan was booked by the complainant in his annual ITR.” 14. In terms of above observations, this petition is partly allowed after setting aside the impugned order dated 16.09.2023. 15. As both the parties are present before this Court, the parties are directed to appear before the trial court on 6th September, 2025 and the court on the date or any other which may be fixed for cross- examination may record the cross-examination of the PW-1. 16. Send back the trial court records. 17. Stay order stands vacated. JUDGE Comparing Assistant