IMPORTANT POINT
Accused could not be permitted to the recalling of prosecution witness for cross-examination to fill loopholes and lacuna..

JUDGMENT

Indrani Datta, J.—The petitioners have filed this petition under Section 482 CrPC for setting aside the impugned order dated, 11.2.2010 passed by ASJ Gwalior in Criminal Revision N0. 32/10 filled against order of JMFC Gwalior and to set aside the order dated 7.1.2010 passed by the JMFC Gwalior in Criminal case No. 2975/09.

2. Facts in a nutshell giving rise to this petition are that charge-sheet has been filed against the petitioners concerning Crime No.6/07 for offence punishable under Section 498A, 406 IPC and Section 3/4 of Dowry Prohibition Act and a criminal case is pending against them in the court of JMFC Gwalior. The trial court has framed charges and complainant was examined on 19.11.07 in the trial court and she was cross-examined by petitioners counsel in that case. Then one application was moved on 31.1.08 under Section 311 for recalling complainant Jyoti for cross-examination. That application is rejected. Thereafter another application is filed by petitioners under Section 311 CrPC on the same ground that application is dismissed by trial court and revision referred against that order is dismissed on 11.2.10 giving rise to present petition.

3. It is contended on behalf of the petitioners that on the date fixed for cross-examination of complainant’ Jyoti and she was cross-examined by junior counsel and junior counsel was unable to cross-examine her on some important .material point concerning allegations levelled by her against petitioners, it is necessary to cross-examine her. The trial court and revisional court erred in disallowing the application under Section 311 CrPC because her cross-examination is necessary for fair, real and proper adjudication of the matter, Hence it is prayed that orders of both the courts below being illegal and improper are liable to be set aside.

4. Learned counsel for petitioners drew this Court’s attention to a citation in Dinesh Kumar v. State of M.P.1 wherein, it is held that discretion under Section 311 CrPC to recall the witnesses would be exercised judiciously. In that case application was filed on the ground that prosecutrix and her husband could not effectively cross-examined by junior counsel and that application was allowed and witnesses were recalled. Reliance is further placed on a citation in Hemant v. State of M.P.2 in which it is held that under Section 311 Cr.P.C. witnesses can be summoned at any stage before judgment is delivered and case is pending for long time is no ground to quash the order of summon the witnesses. Over and above, learned counsel relied upon on a citation in Hoffman Andreas v. Inspector of Customs, Amritsar3, it was a case under Section 20 of NDPS Act and number of witnesses were examined by the prosecution and cross-examined by defence counsel then defence counsel passed away before completing trial and new defence counsel was engaged by accused, who was unaware of scheme of defence strategy of former counsel. In such circumstances, further opportunity was given to defence counsel to put more question to already examined witnesses and the application under Section 311 CrPC was allowed. Relying upon the above canons it is prayed that permission be granted to recall complainant for cross-examination.

5. Learned Public Prosecutor opposed the petition and submitted that previously also one application under Section 311 CrPC was preferred by petitioners in the trial court on 31.1.08 for recalling complainant Jyoti and one. Bitti Devi which was dismissed and that order has not been challenged and no revision has been preferred against that order and the order has attained finality. Hence this second application on the same ground is not maintainable and deserves to be dismissed and the orders of both the courts below are impeccable and do not warrant any interference by this Court.

6. Considered rival submissions of parties and perused the documents on record.

7. So far as the citations relied by the learned counsel for the petitioners are