NURE ALAM CHOWDHURY, J.

( 1 ) THIS revisional application under Section 401 read with Section 482 of the Code of Criminal Procedure has been heard as a "contested application. "

( 2 ) HEARD the learned Advocates on behalf of the petitioner and the State, perused the records.

( 3 ) IN this application, the petitioner Sridhar Das, an accused in Sessions Trial No. 1 (4)94, under Section 302 I. P. C. now pending before the learned Additional District Judge, 2nd Court, Alipore, has challenged the order dated January 2, 1995 passed by Sri R. N. Mallick Chowdhury in the aforesaid case, allowing the 3rd application of the learned Special Public Prosecutor in the aforesaid Trial so far as the prayer for recalling of PW-3 Smt. Rekha Ghosh Chowdhury, PW-6 Prabir Bhattacharyya and PW-8 Sri Babulal Shaw for their re-examination. It appears that two such similar applications for the same prayer for re-examination were rejected earlier by the same Court and those three witnesses PWs-3, 6 and 8 were declared "hostile" and cross-examined on behalf of the prosecution as well as on behalf of the accused-petitioner and were discharged on 11-7-94, 13-7-94 and 20-7-94 respectively. The first application on behalf of the prosecution containing the prayer for re-examination of those witnesses along with others was rejected on 22-8-94 and the subsequent second application containing same prayer was also rejected on 14-11-94 by the same Court.

( 4 ) MR. Pradip Ghosh, learned Senior Advocate, appearing on behalf of the petitioner made three-fold submissions before this Court is assailing the aforesaid order.

( 5 ) MR. Ghosh, learned Senior Advocate firstly contended that after the first application on behalf of the prosecution praying for re-examination of the same PWs-3, 6 and 7 along with others was rejected by the same Court on 22-8-94, the same Court cannot set aside or review the earlier order under the Code of Criminal Procedure and as such the impugned order is liable to be set aside.

( 6 ) MR. Ghosh, learned Senior Advocate next submitted that after a prosecution witness has been declared hostile by the prosecution and permitted by Court to be cross-examined on behalf of the prosecution and the same witness being also cross-examined on behalf of the accused discharged there cannot be any scope for re-examination of the said witness under the Code of Criminal procedure and as such the impugned order is misconceived and untenable in law and is liable to be set aside.

( 7 ) MR. Ghosh, learned Senior Advocate, thirdly submitted that the prosecution cannot be allowed to fill up the lacuna brought out in the prosecution case by the cross-examination of the prosecution witnesses on behalf of the accused persons by reexamination of those witnesses by recalling them by the prosecution to the prejudice of the accused persons. Mr. Ghosh, learned Senior Advocate also cited three decisions reported in (i) AIR 1977 SC 2432 : (1978 Cri LJ 187) (Bindeshwari Prasad Singh v. Kali Singh) (ii) AIR 1985 SC 1440 : (1986 Cri LJ 1074) (Major General A. S. Gauraya v. S. N. Thakur and (iii) 1991 Cri LJ 922 (Cal) (Jitendra Nath Bose v. State of West Bengal) in support of his submissions.

( 8 ) MR. Sasanka Ghosh, learned Advocate appearing on behalf of the State could not produce any authority before this Court that the earlier order of a Court can be set aside or reviewed subsequently by the same Court or the prosecution can be allowed to fill up the lacuna in the prosecution case brought out by cross-examination of the prosecution-witnesses on behalf of the accused persons, by allowing the prosecution to recall its witnesses for re-examination by the prosecution.

( 9 ) IN my view, there is considerable force in the aforesaid submissions of Mr. Pradip Ghosh, learned Senior Advocate on behalf of the petitioner and I hold that the impugned order is liable to be set aside as the learned Additional Sessions Judge, 2nd Court, Alipore, cannot set aside or review the earl

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