Crl.Misc. No.M-4191 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Misc. No.M-4191 of 2011 Date of decision: 9.02.2011 Mohit Nautiyal ......Petitioner Vs. State of Haryana & Anr. ...Respondents CORAM:- HON'BLE MRS.JUSTICE DAYA CHAUDHARY. Present: Mr.Sushil Gautam, Advocate, for the petitioner. --- Daya Chaudhary,J. This petition has been filed under section 482 of the Code of Criminal Procedure (for short the Code) for quashing of order dated 22.01.2011 passed by the learned Additional Sessions Judge, Panchkula and order dated 25.10.2010 passed by the learned Additional Chief Judicial Magistrate Panchkula with a further prayer for direction that respondent No.2 be recalled under section 311 of the Code for examination. Learned counsel for the petitioner submits that section 311 of the Code gives wide and unlimited powers to the court to recall and re- examine any person already examined at the stage of inquiry or trial, but in Crl.Misc. No.M-4191 of 2011 2 the present case, an application filed by the petitioner has not been allowed and the same has been dismissed on the ground that it was not necessary for just decision of the case. In the instant case respondent had telephonic conversations with the petitioner wherein she had admitted that she was having sufficient means to pull on her life and she has also admitted in her cross-examination that the conversation between the respondent and the petitioner is necessary for the just decision of the case. The issue in dispute is whether the complainant/respondent is entitled for enhanced maintenance when she was having sufficient means to support herself. Learned counsel for the petitioner submits that Section 165 of the Evidence Act empowers the court to call/recall a witness at any stage even before pronouncement of the judgment to clarify certain facts. In support of his contention learned counsel for the petitioner also relies upon the judgment in the case of Jamatraj Kewalji Govani Vs. State of Maharashtra AIR 1968 SC 178. Heard the learned counsel for the petitioner and have also gone through the order passed by the learned Additional Chief Judicial Magistrate, Panchkula as well as the order passed by the learned revisional court. In the present case the petitioner was granted maintenance at the rate of Rs.500/- per month. An application under section 127 of the Code was filed for enhancement of the monthly maintenance. Although reply to the application was filed but nothing was mentioned with regard to the income of the respondent. Subsequently, an application was moved by the petitioner under section 311 of the Code to recall the respondent/wife Crl.Misc. No.M-4191 of 2011 3 for further cross-examination as she has made a statement regarding her financial status in her telephonic conversation with the petitioner, but the application was dismissed. Learned counsel for the petitioner submits that the cross- examination of the respondent/wife is necessary for the reason that the sufficient income of the petitioner is there which is necessary for determination of the maintenance. A perusal of the record shows that the application under section 127 of the Code was filed on 22.01.2003 and case was fixed for evidence of the respondent on 29.09.2004. Statement of the respondent was recorded on 15.3.2010 i.e. after a period of 4 years and during that period, no efforts were made by the petitioner to summon the record or to confront the respondent/wife inspite of having various opportunities no such documents were placed on record. Even no document was attached with the application moved under section 311 of the Code. The petitioner availed six opportunities but in spite of that he did not exercise his option available with him and the application was moved just to prolong the case. Admittedly, the powers with the court under section 311 of the Code are not merely to be exercised simply on the asking of any of the parties but such powers are to be exercised to prevent any injustice to the other party. The object in moving such application could not be to delay the proceedings. In the present case application under section 127 of the Code was instituted on 22.01.2003 and application under section 311 of the Code was filed after a lapse of more than 4 years and it has not been mentioned in the application as to how it would be in the interest of justice and how other Crl.Misc. No.M-4191 of 2011 4 party is not going to be affected. It appears from the record that the application under section 127 Cr.PC was filed on 22.01.2003 and the case was fixed for evidence of respondent/wife on 29.09.2004 but till the recording of the statement of respondent on 15.03.2010 no efforts were made to summon the record or to confront the respondent/wife with the same. Even it is not case of the petitioner that conversation was relating to the period after recording of the statement. No such documents were attached with the application also. Ample of opportunities were there but still application was filed after a long delay. The purpose was to prolong the proceedings which cannot be permitted. In view of the facts and position of law, there is nothing in the impugned orders which requires interference by this court. The petition is devoid of merit and the same is hereby dismissed. (Daya Chaudhary) Judge February 9, 2011. rp