Page No.# 1/5 GAHC010274092024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Rev.P./516/2024 SARMILA GAYARI WIFE OF LATE PRASANNA GAYARI, RESIDENT OF MISSION ROAD, WARD NO. 3, P.O. BARPETA ROAD, IN THE DISTRICT OF BARPETA, ASSAM VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY PUBLIC PROSECUTOR, ASSAM 2:SRI UMA RAM SAUD SON OF LATE BIRENDRA SAUD RESIDENT OF VILLAGE- PURANGALIA P.O. BHAWANIPUR IN THE DISTRICT OF BARPETA ASSA Advocate for the Petitioner : MR. DILIP DEY, Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI ORDER 03-01-2025 Heard Shri D. Dey, learned counsel for the petitioner, who has presented this petition under Sections 438/442 of BNSS, 2023 whereby a challenge has Page No.# 2/5 been made to an order dated 19.11.2024 passed by the learned Addl. Chief Judicial Magistrate, Barpeta in NI Case No. 99/2019 under Section 138 of NI Act, 1881 filed by the petitioner/accused u/s 311 of the Cr.PC, 1973. 2. It is the case of the petitioner that the respondent no. 2, as complainant had lodged a complaint under Section 138 of the Negotiable Instruments Act in the year 2019 which was registered as NI Case No. 99/2019. The complainant had adduced evidence as PW 1 whereafter he was cross-examined. Thereafter, Petition No. 2010/2024 was filed by the present petitioner for re-examination of the complainant. 3. The learned Court vide the impugned order has rejected the said application. 4. Shri Dey, the learned counsel for the petitioner has submitted that the powers under Section 311 of the Cr.PC are wide enough and are required to be invoked in the interest of justice. It is submitted that such powers can be exercised at any stage of the enquiry or trial and the learned Court had failed to exercise the aforesaid power causing miscarriage of justice. 5. By drawing the attention of this Court to the questions which were framed to be asked to the complainant in the re-examination under the aforesaid section, the learned counsel has submitted that the response to the aforesaid questions would be crucial in the adjudication of the case. He accordingly submits that the impugned order be interfered with and a direction be issued to allow the petition filed by the petitioner for re-examination of the PW 1. 6. Per contra, Shri Baishya, the learned Addl. PP, Assam has submitted that though the powers under Section 311 of the Cr.PC are wide in nature, the same Page No.# 3/5 cannot be taken recourse to in a routine manner. He further submits that unless a case is able to be made out for invoking such powers, the same should not be invoked which was rightly done by the learned Court. He has also submitted that the questions which were framed to be asked if the re-examination was allowed were on the basis of existing facts and had not emerged out of any new discovery. 7. In his reply, Shri Dey, the learned counsel has submitted that the questions which have been framed would go to the core of the matter and would have a crucial bearing on the outcome of the case. In support of his submission, he has relied upon the case of Rajendra Prasad Vs Narcotic Cell reported in (1999) 6 SCC 110. He has also relied upon a case of the Manipur High Court in the Angom Indrajit Singh Vs State of Manipur reported in 2018 (3) GLT (MN) 683 on the aforesaid provision. 8. The rival submissions have been duly considered. 9. The complaint under Section 138 of the Negotiable Instruments Act was filed in the year 2019 and it appears from the records that the complainant, as PW 1 had filed his examination-in-chief by way of affidavit on 27.07.2022. It also appears from the impugned order that the cross-examination of the PW 1 was done on 05.11.2022 and the witness was discharged. It is long thereafter that the Petition No. 2010/2024 was filed purportedly under Section 311 of the Cr.PC. 10. Though there is no manner of doubt that the powers under Section 311 are wide in nature, it is also equally important to see that such powers which are discretionary in nature are not invoked in a routine manner. As would be apparent from the provisions itself, such recalling and re-examination has to be Page No.# 4/5 done only when it appears that it would be essential to arrive at a just decision of the case. Further, it is incumbent upon the party invoking such powers to make out a case that the re-examination which is required to be done on certain aspects could not be done at the relevant time due to circumstances beyond his control. 11. In the instant case, the questions which were framed and appended to the petition do not appear to have arisen out of some new discovery and those questions were directly connected to the issue between the parties. This Court has also noticed that apart from the proceeding which has been instituted under Section 138 of the Negotiable Instruments Act which is in the nature of a summary trial is continuing for the last 5 years. That apart the Cross- examination of the PW 1 was done on 05.11.2022 and it is only in the year 2024 that the instant petition has been filed. A perusal of the petition does not even make a passing reference as to why the delay has occurred. Further delay in disposal of the matter would be against the interest of justice and the very purpose and object of the enactment of the Negotiable Instruments Act. 12. So far as the case laws cited by the learned counsel for the petitioner are concerned, the judgment of the Hon’ble Supreme Court was mainly in connection with a prayer made on behalf of the prosecution. Even there, the Hon’ble Supreme Court has laid down that the provisions of Section 311 cannot be taken recourse to for filling up lacuna in the prosecution case. In the considered opinion of this Court, the case laws cited would not come to the aid of the petitioner in the facts and circumstances of the present case. 13. In view of the above discussion, this Court is of the considered opinion that the impugned order rejecting the application filed under Section 311 of the Page No.# 5/5 Cr.PC is a reasoned one and does not require any interference. 14. The petition is accordingly dismissed. JUDGE Comparing Assistant