IMPORTANT POINT
The court established that the power to recall witnesses under Sec. 311 of the Cr.P.C. must be exercised with caution and cannot be invoked solely based on a change of counsel or general assertions of inadequacy in previous cross-examination.

JUDGMENT/ORDER

1. Rule. Rule made returnable forthwith. Heard finally by consent of learned Advocates for the parties. Perused the record and proceedings.

2. The applicant is an accused in Summary Criminal Case No.1845/2018 filed under Sec. 138 of the Negotiable Instruments Act, 1881. The complainant adduced his evidence. The complainant was cross examined on behalf of the accused. After this cross examination, the accused changed his advocate. The newly engaged advocate made an application under Sec. 311 of the Code of Criminal Procedure with a prayer to recall the witness and accord permission to cross examine the witnesses. Learned Magistrate after granting an opportunity of hearing to the complainant vide order dtd. 30/9/2021 was pleased to reject this application Exh.71. The accused challenged this order in a revision application before the learned Sessions Court at Akola. Learned Additional Sessions Judge, Akola vide order dtd. 12/9/2022 dismissed the revision application primarily on the ground that the order in question was interlocutory in nature and therefore, revision against the said order was not maintainable.

3. Learned Advocate for the accused submitted that case in question is a fit case to warrant the exercise of jurisdiction under Article 227 of the Constitution of India and to set aside the order passed by the learned Magistrate. Learned Advocate submitted that reasons recorded by learned Magistrate are not consistent with the materials on record. Learned Advocate submitted that newly engaged advocate on going through record found that material questions with regard to the relations between the parties, nature of transaction as well as documents remained to be asked in the cross-examination. Learned advocate, therefore, submitted that rejection of the application has denied a fair trial to the accused, resulting in miscarriage of justice.

4. Learned Advocate for the complainant submitted that the application made by accused for recalling the witness for cross examination was part of the delaying tactics. Learned Advocate took me through the application made by the accused and pointed out that in this application also newly engaged advocate has failed to mention the relevant aspects which have remained to be dealt with in the cross examination. Learned advocate submitted that on the basis of general statements, in the facts of situation and particularly in the backdrop of the evidence of the complainant on record, it is not possible to accept the submission. Learned Advocate submitted that if the application is allowed on such premise, then in that event, there would be no end to the litigation.

5. In order to appreciate the rival submissions, I have gone through the record and proceedings and particularly, the order passed by the Judicial Magistrate First Class, Akola dtd. 30/9/2021. Learned Magistrate on consideration of matter from all possible angles came to the conclusion that the reasons stated in the application are falling short to grant the prayer made by invoking the provisions of Sec. 311 of the Cr.P.C. Learned Magistrate further found on perusal of the cross examination that all the aspects sought to be asserted in para No.2, of the application in support of his prayer for granting an application under Sec. 311 have been sufficiently dealt with in the cross examination conducted by erstwhile advocate of the accused. In order to satisfy myself, I have minutely perused the application. In the application, in the backdrop of the facts of situation, it was expected on the part of the newly engaged advocate to pin point specifically the relevant aspects which have remained to be dealt with in the cross examination. The application is conspicuously silent on this aspect.

6. Learned Judicial Magistrate First Class to form the opinion, in support of his conclusion to reject the application relied upon decision in the case of A.G. Vs. Shivkumar Yadav and another reported at 2015 AIR SCW 5302 as well as the decis