1. Heard Mr. Anjan Chakrabarty. learned counsel for the petitioner. Mr. S.K. Mishra. learned counsel for opposite parties 2 to 4 and learned APP for the State.

2. The order dated 4.10.1999 has been impugned by the petitioner in this application under Section 482 of the Code of Criminal Procedure by reason of which the learned Magistrate has dismissed the petition filed under Section 311 of the Code.

3. On the basis of a fardbeyan of Samir Kumar Ghosh a case was registered and the Police after investigation filed charge-sheet on which cognizance was taken. It was alleged in the First Information Report that on 18.9.1994 at 6.30 p.m. while the petitioner was going on motor cycle to attend the meeting of Bengali Association, he was assaulted by opposite parties 2 and 3 by means of rods infront of the house of one Munni Mistri, as a result the petitioner sustained grievous injury compelling him to be hospitalised for a considerable period. During trial four persons were examined by the prosecution till 18.6.1999 but the petitioner who was the injured and real victim was not examined. On 9.7.1999, when the learned Magistrate closed the evidence, the petitioner immediately filed a petition on the same day under Section 311 of the Code praying therein to record his statement as he was present in Court itself. The copy of the petition is Annexure-2. The learned Magistrate gave an opportunity to the accused to file a rejoinder on the next day and thereafter on 4.8.1999 rejected the petition under Section 311 of the Code.

4. Being aggrieved the petitioner moved the Sessions Judge in Criminal Revision No. 131 of 1999 but without success.

5. Mr. Chakrabarty. learned counsel for the petitioner, has contended that the learned Magistrate as well as the learned Sessions Judge erred in law in rejecting the prayer of the petitioner for his examination on misinterpretation of the decision rendered by the Supreme Court in the case of Raj Deo Sharma V/s. State of Bihar, 1998 (3) PLJR 57 : 1998 (2) East Cr C 1092 (SC). According to him, the modified order of the Supreme Court in the same very case 1999 (7) SCC 604 has not been looked into by both the Courts below and, as such, the orders are vitiated. His further contention is that under Section 311 of he Code, the Court is required to summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case. According to him. when the petitioner being the injured person was present in Court for being examined, the learned Magistrate ought to have allowed his prayer for the ends of justice.

6. Mr. Mishra countering this argument has contended that the present application under Section 482 of the Code is not maintainable as it is in the garb of Second Revision. In support of his contention he has relied on the decision in the case of Surendra Singh and Ors. V/s. State of Bihar and Ors., 1990 (2) PLJR 693. Secondly, he has contended that the petitioner having not challenged the order dated 9.7.1999 closing the evidence by the learned Magistrate, he cannot be allowed to impugn the order dated 4.10.1999 because setting aside the impugned order would amount to review the order dated 9.7.1999. Lastly, he contends that when even during two years the prosecution could not produce any further evidence and the petitioner being a practising lawyer was present in Court did not examine himself, the learned Magistrate cannot be blamed for rejecting his prayer under Section 311 of the Code.

7. It is true that in the case of Surendra Singh. (supra) a Special Bench of this Court has held that when the Revision petition under Section 397(1) of the Code filed before the Sessions Judge was dismissed. the petition under Section 482 of the Code is not maintainable. but subsequently in several decisions. the Apex Court has dealt with this question and has observed that the High Courts power under Sections 482 and 397 of the Code is separate from each