Judgment:
S.K. Mishra, J.
1. Heard learned Counsel for the petitioner and learned Counsel for opposite party. Perused the records. The case is disposed of at the stage of admission keeping in view the limited nature of prayer made.
2. The accused in 1 C.C. No. 222 of 2003 of the Court of S.D.J.M., Panposh, Rourkela has assailed the order passed by the learned trial Court on 17.11.2007 rejecting his prayer under Section 311 of the Criminal Procedure Code (hereinafter referred to as the 'Code' for brevity). This is a case under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act' for brevity). On 17.11.2007, the accused filed an application before the learned trial Court to recall P.W.1 for further cross-examination, in view of the fact that, a disputed document has been enclosed in 1 C.C. No. 67 of 2003, which has been filed by the complainant himself and limited question are to be asked thereon. Learned S.D.J.M., has rejected the petition mainly on two grounds, i.e. first, there is a delay in filing the petition to recall the witness, and the second ground is that the document is a Xerox copy of the agreement which cannot be admitted into evidence.
3. Learned Counsel for the petitioner submits that there was an agreement between the parties in which money was advanced on which interest was to be charged. Such fact can be borne out from the said document filed in 1 C.C. No. 67 of 2003. On the prayer of the accused, the said case bearing 1 C.C. No. 67 of 2003 was called for but the lower Court refused to recall P.W.1 for further cross-examination. Therefore, he prays that the revision application should be allowed.
4. Learned Counsel for opposite party, on the other hand, submits that the petition under Section 311, Cr.P.C. is without any merit as the accused-petitioner has not indicated the questions, he wants to put to the witness to recall for cross-examination. He also contends that the revision application is not maintainable in view of the bar in Sub-section (2) of Section 397 of the Code.
5. Since the question of maintainability is raised in this case, it is apposite to decide such question first.
6. Section 397 of the code provides calling for records to exercise powers of revision. Sub-section (2) of the said Section provides that the powers of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding, ft is noted here that Section 397 empowers the High Court as well as Court of Session to call for the records to exercise power of revision. In addition to power of revision under Section 397 of the Code, the High Court has inherent power under Section 482 of the Code. Section 482 provides that nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
7. This provision came for consideration before a Bench consisting three Hon'ble Judges of the Supreme Court in Madhu Limaye v. State of Maharashtra : AIR 1978 SC 47. At page-51 in the continuing paragraph-10, their Lordships' held that the bar provided in Sub-section (2) of Section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then, the inherent power will come into play, there being no other provision in the Code for the redressal of the grievance of the aggrieved party. If the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the Code of Criminal Procedure, 1898, the High Court will refuse to exercise its inherent power. The Apex Court further held that in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly.
8. In view of the aforesaid clear position of law, the High Court has power to interfere with the impugned order not by resorting to Section 397 but under Section 482 of the Code.
9. In order to exercise the power under Section 482 of the Code, it is to be seen whether there has been abuse the process of the Court or failure of justice in this case. The accused is facing trial for commission of offence under Section 138 of the Act, 1881, wherein defence available to the accused is a very limited in view of the presumption provided under Section 139 of the Act. Section 243 of the Code provides that tire accused has a right of advancing such evidence as deem proper by him to defend his case. Such right is a valuable right. Moreover, the provision of Section 311 is a provision enabling, and in certain circumstances imposing, on the Court, the duty of examining a material witness who would not be otherwise brought before it. Section 311 of the Code is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely necessary for doing justice between the parties. A duty is cast upon the Court to arrive at the truth by all lawful means and no of such means is the examination of witnesses of its own or on behalf of any of the parties appearing before it. Any application filed under Section 311 of the Code should also be examined at the stage in which the original case is posted before the trial Court, along with Section 243 of the Code. Thus, the reason recorded by learned trial Court that there was delay in filing of recall petition is clearly erroneous.
10. Secondly, it is seen that if at all there is an agreement in which the parties has agreed that an interest will be charged, then the consequences thereof has to be considered in this case. Once the accused is not allowed to ask questions to P.W.1, i.e. the complainant regarding that particular document, then that aspect of the case can not be brought to light and it will result in absolutely failure of justice. Therefore, it is expedient in this case to allow the accused persons to put the questions to P.W.1 with respect to the document filed in 1.C.C. No. 67 of 2003. It is submitted that the document was filed by the complainant himself in that 1.C.C. No. 67 of 2003. Even a Xerox copy of a document can be taken into evidence as secondary evidence, if the conditions laid down under Section 65 of the Indian Evidence Act, 1872 are satisfied. It is to be kept in mind while considering the admissibility of the said document.
11. Keeping in view the aforesaid consideration, this Court is of the opinion that the order passed by the learned trial Court is unsustainable and requires interference. However, it should be in the interest of justice that the accused should clarify the questions he wants to put to said P.W.1, before he is asked to take the witness box. Accordingly, it is directed that within thirty days hence, the accused shall make a fresh application before the learned S.D.J.M., Panposh, Rourkela, in 1.C.C. No. 222 of 2003 delineating all the questions he wants to put forth. On such event, the lower Court shall allow the application and direct P.W.1 to remain present on a date fixed by the Court. It is, however, made clear that on the date fixed accused shall cross-examine the witness, P.W.1. No further time shall be granted. The parties are directed to appear before the lower Court on 19.02.2010.
The CRLREV is accordingly disposed of. Interim order passed in Misc. Case No. 2159 of 2007 stands vacated.