1 S.B. Cr. Misc. Petition No.330/2010 (Atul Saxena Vs. State of Raj. & Another) Date of Order :: 3rd March, 2010 HON'BLE MR. MAHESH BHAGWATI,J. Mr. Atul Saxena, counsel for the petitioner Mr. G.S. Fauzdar, PP for the State Mr. Ram Manohar Sharma counsel for the respondent no.2 By way of this petition filed u/s 482 of Cr.P.C., the petitioner has prayed to set aside the order dated 18th January, 2010 rendered by the Additional Chief Judicial Magistrate No.10 Jaipur City, Jaipur in Criminal Case No. 491/2007 whereby he dismissed the application filed by the petitioner under Section 311 of Cr.P.C. Heard learned counsel for the parties and carefully scanned the impugned order dated 18th January, 2010. Having considered the submissions made on behalf of the learned counsel for the parties and perused the order dated 18th January 2010, it is noticed that the accused petitioner filed an application under 2 Section 311 of Cr.P.C. mentioning therein that on 7.11.2009 since his advocate was ill, therefore, he could not appear before the court below, as a result of which the cross examination of the witness was closed. The said application was dismissed by the learned trial Court. Aggrieved with the order of the trial court, he has filed this petition under Section 482 of Cr.P.C. invoking the inherent powers of High Court. A bare perusal of Section 311 of Cr.P.C. makes it clear that the powers u/s 311 of Cr.P.C. have been given to the Court to examine, or re-examine any person as a witness, if that court considers it necessary to do so for the just decision of the case. If Section 311 of Cr.P.C. is read with Section 165 of Indian Evidence Act, it would be clear that the power under Section 311 of CR.P.C. and Section 165 of Indian Evidence Act are conferred on the Court 3 and not on the parties and therefore, it is the Court alone which can exercise the powers u/s 311 of Cr.P.C, if the Court is of the opinion that it is necessary to do so for the just decision of the case. The examination and re- examination which is contemplated by Section 311 of Cr.P.C and Section 165 of Indian Evidence Act is to be made by the Court and not by the parties. Viewed in this light, if the powers under Section 311 of Cr.P.C. are used by the Court for the purpose of enabling any party to examine or re-examine the witness, it would be impermissible to do so. Of Course, the Court has unfettered powers to examine and re-examine any witness u/s 311 of Cr.P.C at any time. A bare reading of Sub-Section 3 of Section 242 of the Cr.P.C. shows that the Magistrate conducting trial is empowered to defer the cross examination of any prosecution witness or witnesses who have been examined or recall any 4 witness for further cross examination. The powers given by sub Section 3 of Section 242 of Cr.P.C. are judicial powers and must be exercised in a judicial manner. Besides, the provisions contained in sub-Section 3 of Section 242 of Cr.P.C. are in the nature of special provisions, therefore, the general provisions contained in Section 311 of Cr.P.C cannot be invoked by the accused for recalling any witness for cross examination. Learned counsel for the petitioner has canvassed that if the complainant is not put to cross examination, it shall cause a great injustice to the accused. It is a well settled proposition of law that the powers under Section 482 of Cr.P.C. must be exercised sparingly with circumspection and in the rarest of rare cases. Exercise of inherent power u/s 482 of Cr.P.C. is not the rule but it is an exception. The exception is 5 applied only when it is brought to the notice of the Court that grave miscarriage of justice would be done if the inherent power is not exercised. The power u/s 482 of Cr.P.C is to be exercised to prevent abuse of the process of any Court. It is not a provision permitting any person to abuse the process of law. The petitioner was given ample opportunity to cross examine the complainant but he, for one or the other reason, did not avail the same. That shows his seriousness to the trial. The petition is totally devoid of any substance and the same deserves to be dismissed. In the result, the misc. petition being bereft of merits, stands dismissed. (MAHESH BHAGWATI)J. DK