The main legal point established is that the delay in cross-examination of witnesses should not be considered deliberate and intentional without sufficient evidence, and the defence should be given the opportunity to cross-examine the witnesses.

1. Heard learned counsel for the petitioner and learned counsel for the State.

2. This application has been filed against order dated 16.1.2007 passed in Sessions Trial No. 338/06 by the Additional District & Sessions Judge-cum-Fast Track Court No. II, Buxar, by which the petition of the defence dated 5.1.2007 filed under Sec. 311 Cr.P.C. for recalling of prosecution witnesses no. 13, 14 and 15 has been rejected.

3. The prosecution witnesses no. 13, 14 and 15 were examined by the court on 22.12.2006 and they were discharged. From order dated 22.12.2006, which has been annexed as Annexure-2 to this application, it appears that prior to 2.45 P.M. the appearance of witnesses were not filed and the accused was not produced from jail. Learned counsel for the petitioner submits that in that situation learned senior counsel for the defence left the court as it appeared that on that day also no witness would be examined in the case. Learned counsel for the petitioner further submits that earlier also on many dates counsels were present in the court but the accused was not produced from jail and, therefore, no witness was examined.

4. From the order-sheet it appears that at 2.45 P.M. appearance of three witnesses were filed in the court and at 2.50 P.M. the accused was produced from jail. Thereafter, the prosecution examined the witnesses and their examination-in-chief was concluded. The defence was called upon to cross-examine the witnesses. However, senior counsel on behalf of the defence had already left the court and junior counsel appearing for defence had gone in search of him. This delayed the matter and since the counsel for defence could not come to court for cross-examination of the witnesses, the evidence of the witnesses was closed at 3.40 P.M. In the meanwhile learned junior counsel for the defence informed the court that as the senior counsel is not available in the court premises, the cross-examination of the witnesses may be deferred and he may be given time to cross-examine the witnesses. Learned junior counsel for the defence also filed a petition at 4.25 P.M. in the court for recall of the order of closing of the evidence of the witnesses and allowing time to the defence to crossexamine them.

5. From the order impugned it appears that this delay has been taken as deliberate and intentional on the part of the defence to delay the matter and, therefore, the petition under Sec. 311 Cr.P.C. has been rejected by the impugned order. From the consequence of events it appears that the defence could not crossexamine the three witnesses due to late filing of their appearance and late production of the accused. As such, it appears that there was no deliberate laches on the part of the defence in not cross-examining the witnesses on the same day.

6. In that view of the matter, I find that the order impugned is not sustainable in law and, therefore, it is set aside and the trial court is directed to fix up a specific date for cross-examination of prosecution witnesses no. 13, 14 and 15 and give opportunity to the defence to crossexamine them. Thereafter, the learned court below shall proceed in accordance with law in the matter.

7. With the observations/directions aforesaid this application is allowed.