( 2025:JHHC:36653) 1 Cr.M.P. No.1882 of 2025 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 1882 of 2025 1. Krishna Nandan, aged about 69 years, son of late Brij Nandan Prasad, resident of Game-2, Grater Noida, P.O. & P.S.-Surajpur, Dist.-Gautam Buddha Nagar, Uttar Pradesh 2. Sourov Mukherjee @ Sourav Mukharjee, aged about 63 years, son of Amiya Bhushan Mukherjee, resident of Manick Bandhopadhyay Sarini, P.O. & P.S.-Regent Park, Kolkata, West Bengal .... Petitioners Versus 1. The State of Jharkhand 2. Moti Lal Soren, son of late Ghasi Ram Soren, resident of Gorogora/Baliguma, P.O.-Bhilaipahari, P.S.-MGM (Mango), Town- Jamshedpur, Dist.-East Singhbhum …. Opp. Parties P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioners : Mr. Ajit Kumar, Sr. Advocate : Mr. P.A.S. Pati, Advocate : Mr. Akshay Kumar, Advocate For the State : Mr. Pankaj Kumar, P.P. For O.P. No.2 : Mr. Subhashis R. Soren, Advocate : Ms. Shobha G. Lakra, Advocate : Ms. Mrinalini A. Tete, Advocate : Mr. Elwin N. Tirkey, Advocate : Ms. Preeti Hembrom, Advocate : Ms. Singi S. Demta, Advocate ….. By the Court:- 1. Heard the parties. 2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 528 of B.N.S.S., 2023 with the prayer to quash the order dated 11.03.2025 passed by the learned Judicial Magistrate 1st Class, Jamshedpur in Complaint Case No. 1791 of 2015 whereby and where under, in the same ( 2025:JHHC:36653) 2 Cr.M.P. No.1882 of 2025 order the learned Judicial Magistrate 1st Class, Jamshedpur has allowed the petition of the complainant to examine further witness under Section 311 Cr.P.C. and in the later part of the said order has rejected the petition filed by the petitioner under Section 268 of B.N.S.S. for discharge. 3. It is submitted by the learned Senior Advocate appearing for the petitioners that the learned Judicial Magistrate 1st Class, Jamshedpur dealt with the petition under Section 311 Cr.P.C. from running page no. 148 of the brief to middle part of page no. 150 and in the entire running page nos. 148, 149 and till the second paragraph of page 150, the learned Judicial Magistrate 1st Class, Jamshedpur has reproduced the contents of the petition filed by the complainant and the rejoinder which was filed by the petitioners and thus quoting the contents of the petition, the learned Judicial Magistrate 1st Class, Jamshedpur has observed the following:- “Heard and perused the case record, from perusal it appears that before charge evidence was closed on 02.07.2024. Now complainant wants to adduce witnesses complainant himself and other witnesses Rajesh Soren, Babulal Soren are material and important witnesses in this case. Considering the above facts and circumstances, petition dated 30.08.2024 filed by the complainant Motilal Soren under Section 311 of Cr.P.C. is hereby allowed.” 4. It is submitted by the learned Senior Advocate appearing for the petitioners by relying upon the judgment of the Hon’ble Supreme Court of India in the case of State (NCT of Delhi) vs. Shiv Kumar Yadav & Anr. reported in (2016) 2 SCC 402, paragraph no.27 of which reads as under:- ( 2025:JHHC:36653) 3 Cr.M.P. No.1882 of 2025 “27. Xxxxxxxxxx xxxxxxxx xxxxxxxxxx Certainly recall could be permitted if essential for the just decision but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary “for ensuring fair trial” is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial. Having regard to these considerations, we do not find any ground to justify the recall of witnesses already examined.” (Emphasis supplied) that it was accepted on the part of the learned Judicial Magistrate 1st Class that while party is permitted to correct its bona fide error and may be entitled to further opportunity, the Court is expected to record its finding that plea of exercise of the power under Section 311 Cr.P.C. for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and the delay in trial and having not done so and without application of judicial mind, the learned Judicial Magistrate 1st Class, Jamshedpur allowed the petition under Section 311 Cr.P.C. and even though in the later part of the said order the same Magistrate has went on to hold that from the perusal of the evidence of C.W.1 before charge, there is sufficient material on the record for framing charge; so the orders of the learned Magistrate ( 2025:JHHC:36653) 4 Cr.M.P. No.1882 of 2025 is contradictory because the purpose of before charge evidence is to ascertain whether the materials in the record is sufficient to frame charge or not. Hence, it is submitted that order dated 11.03.2025 passed by the learned Judicial Magistrate 1st Class, Jamshedpur in Complaint Case No. 1791 of 2015 being not in accordance with law be quashed and set aside. 5. Learned Public Prosecutor and the learned counsel for the opposite party no.2 on the other hand vehemently oppose the prayer and submits that there is no illegality in the order passed by the learned Judicial Magistrate 1st Class, Jamshedpur. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 6. Having heard the submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that the purpose of recording evidence before charge in exercise of the power under Section 244 of the Cr.P.C. is only to ascertain as to whether there is material in the record to frame charge against the accused person. 7. Now from perusal of the impugned order, this Court finds that this is a case of total non-application of judicial mind by the learned Judicial Magistrate 1st Class, Jamshedpur; as on the same order in the first part it has allowed the petition under Section 311 Cr.P.C., apparently because the materials in the record were not sufficient to frame charges but in the later part, it has also formed an opinion that there is sufficient material in the record in terms of ( 2025:JHHC:36653) 5 Cr.M.P. No.1882 of 2025 the evidence that has been put forth by the C.W.1 who was examined before charge, which is sufficient for framing charge. Besides the fact that the learned Judicial Magistrate 1st Class, Jamshedpur has failed to apply its judicial mind by assigning cogent reason as to what was the necessity to allow the petition under Section 311 Cr.P.C. It ought not have took up the petition under Section 268 of Bharatiya Nagarik Suraksha Sanhita on the same day and by holding that there is sufficient material in the record to frame charge. Hence, the order dated 11.03.2025 is not sustainable in law. Accordingly, the same is quashed and set aside. 8. The case is remitted to the court of learned Judicial Magistrate 1st Class, Jamshedpur to pass a fresh order after giving opportunity of being heard to both the parties in respect of the petition filed under Section 311 Cr.P.C. and any other petition which may be filed by the petitioners as per the provision of Code of Criminal Procedure. 9. Before parting, it is made clear that it appears that the complaint case is of the year 2016 and under Section 531 (2) (a) of the Bharatiya Nagarik Suraksha Sanhita, it has been provided for that if, immediately before the date on which this Sanhita comes into force, there is inter alia any appeal, application, trial, inquiry or investigation pending, then the same shall be disposed of or continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1973 as in force ( 2025:JHHC:36653) 6 Cr.M.P. No.1882 of 2025 immediately before such commencement. Hence, the Complaint Case No. 1791 of 2015 being pending before the Bharatiya Nagarik Suraksha Sanhita came into force, the said case shall proceed in accordance with the provision of the Code of Criminal Procedure and not as per the provision of Bharatiya Nagarik Suraksha Sanhita. 10. The interim relief granted earlier vide order dated 01.08.2025 is vacated. 11. Registry is directed to intimate the court concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 6th December, 2025 AFR/Sonu-Gunjan/- Uploaded on 16/12/2025