Gauhati High Court
Anjana Dutta vs The State Of Assam And Anr on 24 June, 2025
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GAHC010223502023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./435/2023
ANJANA DUTTA
W/O SRI PRANJAL DUTTA
R/O GOGAMUKH, P.O. AND P.S. GOGAMUKH, DIST. DHEMAJI, ASSAM
PIN-787034
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE LEARNED PP, ASSAM
2:SRI DEEPRANJAN KONWAR
S/O LATE BHOLANATH KONWAR
R/O KUKURAJUJ
DHAKUWAKHANA
GHOTPARA
DIST. LAKHIMPUR
ASSAM
PIN-78705
Advocate for the Petitioner : MR. A CHAMUAH, MR. P K BHUYAN
Advocate for the Respondent : PP, ASSAM, MS. M CHANGMAI (R-2),MR. S DIHINGIA (R-2)
BEFORE
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
Date : 24.06. 2025
1. Heard Mr. A. Chamuah, learned counsel for the petitioner Smti Anjana
Dutta, who has filed this application under Section 482 read with Section 401
of the Code of Criminal Procedure, 1973, (Cr.P.C. for short), challenging the
order dated 16.09.2023, passed by the learned Addl. Chief Judicial Magistrate,
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Dhemaji in N.I. Case No. 08/2020 dismissing the petition under Section 311
Cr.P.C. with prayer to recall PW 1 to ask two specific questions.
2. Also heard Mr. B. Sarma, learned Addl. Public Prosecutor, Assam for the
State respondent No. 1 and Mr. S. Dihingia, learned counsel for respondent No.
2.
3. It is submitted on behalf of the petitioner that when PW 4 was cross-
examined, it has surfaced through his evidence that the respondent No. 2
despite being a Headmaster in a Government school was also running money
lending business. When it has surfaced through the evidence that money was
lent to the petitioner on interest as depicted by the evidence of the PW 4, the
petitioner for clarification, at the stage of argument, filed an application under
Section 311 Cr.P.C. to recall the witness to cross-examine PW-1 on two specific
points. However, the learned Addl. CJM, Dhemaji dismissed the petition under
Section 311 Cr. P.C. without assigning any reasons.
4. Annexure- 6 is the order impugned by the petitioner, which clearly reflects
the order passed by the learned Addl. CJM, Dhemaji. Annexure- 5 is the petition
which was rejected vide order dated 16.09.2023.
5. The respondent No. 2 has raised serious objection against the petition
stating that the order under Section 311 Cr.P.C. is an interlocutory order and
thus, this petition is not maintainable as this petition is a revision petition under
Section 401 Cr. P.C. read with Section 482 of the Cr.P.C.
6. The learned counsel for the respondent No. 2 has relied upon the decision
of the Hon’ble Supreme Court in the case of Amar Nath and Ors. Vs. State
of Haryna and Anrs, reported in (1977) 4 SCC 137 wherein it has been
observed as follows:
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“3. While we fully agree with the view taken by the learned Judge that
where a revision to the High Court against the order of the Subordinate
Judge is expressly barred under sub-section (2) of Section 397 of the 1973
Code the inherent powers contained in Section 482 would not be available
to defeat the bar contained in Section 397 (2). Section 482 of the 1973
Code contains the inherent powers of the Court and does not confer any
new powers but preserves the powers which the High Court already
possessed. A harmonious construction of Sections 397 and 482 would lead
to the irresistible conclusion that where a particular order is expressly
barred under Section 397(2) and cannot be the subject of revision by the
High Court, then to such a case the provisions of Section 482 would not
apply. It is well settled that the inherent powers of the Court can ordinarily
be exercised when there is no express provision on the subject-matter.
Where there is an express provision, barring a particular remedy, the
Court cannot resort to the exercise of inherent powers.”
7. The learned counsel for the respondent No. 2 has also relied upon the
decision of the Hon’ble Supreme Court in the case of Girish Kumar Suneja
Vs. Central Bureau of Investigation, reported in (2017) 14 SCC 809 wherein
it has been observed as follows:
“24. The second reason why Amar Nath is important is that it invokes the
principle, in the context of criminal law, that what cannot be done directly
cannot be done indirectly. Therefore, when Section 397(2) CrPC prohibits
interference in respect of interlocutory orders, Section 482 CrPC cannot be
availed of to achieve the same objective. In other words, since Section
397(2) CrPC prohibits interference with interlocutory orders, it would not
be permissible to resort to Section 482 CrPC to set aside an interlocutory
Page No.# 4/6order. This is what this Court held: (SCC p. 140, para 3)
“3. While we fully agree with the view taken by the learned Judge
that where a revision to the High Court against the order of the
Subordinate Judge is expressly barred under sub-section (2) of
Section 397 of the 1973 Code the inherent powers contained in
Section 482 would not be available to defeat the bar contained in
Section 397 (2). Section 482 of the 1973 Code contains the inherent
powers of the Court and does not confer any new powers but
preserves the powers which the High Court already possessed. A
harmonious construction of Sections 397 and 482 would lead to the
irresistible conclusion that where a particular order is expressly
barred under Section 397(2) and cannot be the subject of revision
by the High Court, then to such a case the provisions of Section 482
would not apply. It is well settled that the inherent powers of the
Court can ordinarily be exercised when there is no express provision
on the subject-matter. Where there is an express provision, barring
a particular remedy, the Court cannot resort to the exercise of
inherent powers.”
(Emphasis supplied)
“25. This view was reaffirmed in Madhu Limaye when the following
principles were approved in relation to Section 482 CrPC in the context of
Section 397(2) thereof. The principles are: (SCC p. 555, para 8)
“(1) That the power is not to be resorted to if there is a specific
provision in the Code for the redress of the grievance of the
aggrieved party;
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(2) That it should be exercised very sparingly to prevent abuse of
process of any court or otherwise to secure the ends of justice;
(3) That it should not be exercised as against the express bar of law
engrafted in any other provision of the Code.”
Therefore, it is quite clear that the prohibition in Section 397 CrPC will
govern Section 482 thereof. We endorse this view.”
8. It is further contended on behalf of the respondent that the date of cross
examination of PW 4 was 04.05.2022 whereas the petition under Section 311
Cr.P.C. was filed after a prolonged delay of 14 months i.e. on 15.07.2023.
9. This petition was filed with intent to fill up lacunae at the stage of
argument. Since the date when the petition was filed, the case was pending at
the stage of argument. Rather, this exercise has been an abuse of process of
the Court.
10. In reply, the learned counsel for the petitioner has submitted that Section
311 Cr.P.C. affords the last possible opportunity to the defence to place their
grievance before the court . The petitioner has specifically pointed out the
question in her petition i.e. Annexure-5, which are to be asked to the
complainant i.e. PW 1.
11. I have considered the submissions at the bar with circumspection. It is
true that Section 482 Cr.P.C. is to be exercised sparingly and only to prevent the
abuse of process of the court or to secure the ends of justice. It appears that an
opportunity is to be accorded to the petitioner to specifically ask the questions
which the petitioner believes would be necessary for her appropriate defecne.
12. Section 311 of the Cr.P.C. lays down:-
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“311. Power to summon material witness, or examine person
presesent. _ Any Court may, at any stage of inquiry, trial or other
proceeding under this Code, summon any person as a witness, or examine
any person in attendance, though not summoned as a witness, or recall or
reexamine any persons already examined; and the Court shall summon or
examine or recall or reexamine any such person if his evidence appears to
it to be essential to the just decision of the case.”
13. It is true that the case is at the stage of argument but for proper
adjudication of the matter, the petitioner is allowed to ask the question as
follows which are mentioned in the petition:
“(i) Source of in-flow of the cash that were given to the accused on loan;
(ii) Whether the loan was booked by the complainant in his annual ITR.”
14. In terms of above observations, this petition is partly allowed after setting
aside the impugned order dated 16.09.2023.
15. As both the parties are present before this Court, the parties are directed
to appear before the trial court on 6 th September, 2025 and the court on the
date or any other which may be fixed for cross- examination may record the
cross-examination of the PW-1.
16. Send back the trial court records.
17. Stay order stands vacated.
JUDGE
Comparing Assistant