ORDER :

1. With the consent of the parties, the matter is heard finally at the motion stage.

2. Challenge in this petition under Section 482 of Cr.P.C. is to the order dated 01.10.2022 (Annexure P-1) passed by learned Additional Sessions Judge, Sarangarh, District Raigarh (CG) in S.T. No. 11/2017 thereby rejecting application of petitioner No. 2 filed under Section 311 of the Code of Criminal Procedure, 1973 (henceforth “the Code”) seeking re-cross examination of witness Ruchit Nayak (PW-14).

3. Facts of the case, in brief, are that petitioners are facing criminal trial under Sections 307, 201, 120-B, 34 of IPC on the allegation that on 8.6.2017, petitioners have attacked and assaulted victim by means of axe causing serious injuries to him. During course of trial, on 17.7.2019 statement of victim Ruchit Nayak (PW-14) was recorded by the Court below. After examination of victim, petitioner No. 2 realized that victim (PW-14) was though effectively cross-examined only on behalf of petitioner No. 1, but not in respect of petitioner No. 2 herein. Therefore, application under Section 311 Cr.P.C. to recall victim (PW-14) for re-cross examination, is filed mentioning the points on which re-cross examination of PW-14 is to be done. However, the Court below vide order impugned rejected said application holding that reasons set forth in application to recall witness for re-cross examination do not appear to be bona-fide.

4. Learned counsel for petitioners would submit that victim (PW-14) was cross-examined by counsel for petitioner No. 1 representing him before Court below and the counsel representing petitioner No. 2 before the Court below under a bona fide belief that cross-examination of victim in respect of petitioner No. 2 on vital points must have been done by him and therefore, during cross-examination of victim by him, he did not put relevant questions to him. However, after going through certified copy of deposition sheet of victim (PW-14), petitioner No. 2 was surprised to know that there is no cross-examination of victim with respect to his evidence relating to petitioner No. 2, particularly in Paragraph-2 wherein victim stated him to be assailant who gave axe blow to him. Therefore, an application under Section 311 of Cr.P.C. was moved on behalf of petitioner No. 2 to recall victim (PW-14) for re-cross examination specifically mentioning the questions required to be put to the victim (PW-14) during his re-cross-examination. However, the Court below ignoring settled proposition of law rejected said application holding that reasons assigned in application for recalling witnesses are not sufficient. He submits that there was no proper cross-examination of victim (PW-14) on behalf of petitioner no. 2 and therefore, it is necessary to re-cross examine victim (PW-14) with a view to ask certain questions relevant to the statement made by PW-14 with respect to petitioner No. 2, as detailed in application. He submits that purpose of reexamination is only to get the clarifications with respect to allegations appearing in cross-examination of PW-14 on behalf of petitioner No. 1 and not to introduce totally new facts, which have no concern with cross-examination. Petitioner No. 2 is facing trial which may entail penal punishment i.e. imprisonment upto 10 years, therefore, he should be afforded opportunity to effectively defend his case. It is submitted that no prejudice would be caused to the prosecution if concerned witness is summoned for re-cross examination. On the contrary, if said witness is not summoned for re-cross-examination, irreparable loss would be occurred to petitioner No. 2 and it may lead to conviction of petitioner No. 2 also. Hence, in the interest of justice, the order impugned being illegal and without application of judicial mind is liable to be set aside and application filed on behalf of petitioner No. 2 deserves to be allowed.

5. On the other hand, learned State Counsel submits that while rejecting application of peti