IMPORTANT POINT
The powers vested with the Court under Section 540 under old CrPC, which is equivalent to Section 311 of the new Cr.PC, is not intended to be used for the purpose of giving opportunity to the defence to recall and re-cross-examine at its instance.

ORDER

P.K. Musahary, J.—Heard Mr. M.H. Rajborbhuyan, learned counsel for the petitioner and also heard Mr. B.B. Gogoi, learned Addl. P.P. Assam for the opposite party.

2. Orders dated 29.11.2010 and 3.12.2010 passed by the learned Sessions Judge, Cachar, Silchar in Sessions Case No. 150/2009 are under challenge in this Criminal Revision Petition. How the aforesaid two orders were passed, a brief story of the prosecution needs to be stated.

3. An FIR was lodged against the present petitioner to the effect that on 13.10.2009 at around 8.00 p.m., the petitioner and other accused persons kidnapped the informant’s minor daughter who could not be traced out in spite of search made The police registered the case as Katigoarh P.S. Case No.65/2009 under Sections 366(A)/376, IPC and after investigation charge sheet was laid against the petitioner under Section 366(A)/376, IPC. The case being committed to the learned Court of Sessions, Silchar, was registered as Sessions Case No. 150/2009, and in the meantime, victim girl, got married to somebody at Hailakandi.

4. The learned Sessions Judge framed charge under the said sections against the present accused-petitioner and the trial commenced. The prosecution examined the victim girl Rasma Begum and the informant Samsul Haque Laskar as PW1 and PW2 respectively. They were duly cross-examined by the defence and were discharged on 16.7.2010. The Investigating Officer and the Medical Officer were also examined and cross-examinaed on 7.10.2010 and 29.11.2010 respectively and were discharged. On 7.10.2010, the accused petitioner filed an application, which was registered as Application No. 12/6, making a prayer before the learned trial court for recalling PW1 and PW2 for further cross-examination. The learned Sessions Judge heard the parties and passed the impugned order dated 29.11.2010 rejecting the aforesaid prayer and fixed 3.12.2010 for hearing on arguments. On 3.12.2010, the accused persons remained absent without steps. However, later on, the learned counsel for the defence filed Petition No.65/1 belatedly showing the cause of absence of the accused-petitioner and fixed another date for hearing on 8.12.2010 directing the. petitioner’s counsel to produce the accused persons.

5. Mr. Rajborbhuyan, learned counsel for the accused-petitioner submits that the learned trial court mechanically and without application of judicial mind, refused to exercise power under Section 540 of the Code of Criminal Procedure, 1898 and Section 165 of the Indian Evidence Act, 1872 and rejected the prayer for recalling PW1 and PW2. Under the aforesaid provisions of law, according to him, the court has been conferred with wide jurisdiction and there is no limitation on such power of the court as the exigencies of justice require as held in Jamatraj Kewalji Govani v. State of Maharashtra.1 Further, as submitted by him, witnesses can be re-called or re-summoned under Section 311 of the Code of Criminal Procedure, 1973 although such Power cannot be exercised to fill up lacuna in Prosecution case as held in Rajendra Prasad v.. Narcotic Cell.2

6. This Criminal Revision Petition is accompanied by a copy of the aforesaid Application No.12/6, which has been marked as Annexure 3. The reason for recalling the prosecution witnesses for further cross-examination have been narrated as under:

“1. That Sir prosecution examined witnesses namely Rasma Begum (PW1) prosecutrix and Samsul Hoque Laskar (PW2) father of prosecutrix and cross-examined and discharged on 16.7.2010. But due to mistake of fact some questions could not be asked which were necessary for the defence to apprising to true fact of the case before the court as a result accused Petitioner prejudiced and there has been a question of defeating the fair justice.

2. That Sir there was oral evidence of prosecutrix (PW1) and her father (PW2) regarding occurrence of incident, rape kidnapped and recovery. But no cross-examination made on these important point due to mistak