An order under Section 311 Cr.P.C. is interlocutory and not subject to revision. Recalling a witness should be balanced with considerations of fairness, undue hardship to witnesses, and delay in the trial.

JUDGMENT

Rajnish Bhatnagar, J. The present petition under Sections 397/399/401 Cr.P.C. has been filed by the petitioner, namely, Mohd Hasan @Nanhe, with the following prayers:

"(a) call for the record of Ld. Trial Court;

(b) set aside the impugned order dated 31.03.2023 in FIR no 854/2015 PS New Usmanpur U/S 302/201 IPC passed by Shri Pankaj Arora, Ld. ASJ, Karkardooma Courts, Delhi;

(c) Pass any other reliefs), which this Hon'ble Court may deem fit and proper, under the facts and circumstances of the case, in favour of the petitioner."

2. Briefly stated, the facts of the case are that on 16.08.2015, the present FIR No. 854/2015 was got registered at New Usmanpur under Sections 302/201 IPC against an unknown person and the dead body was preserved for identification.

3. Vide impugned Order dated 31.03.2023, Ld. ASJ dismissed the application under Section 311 Cr.P.C. filed by the petitioner for recalling PW-8 Mohd. Kasim for his further cross-examination on the ground that PW-8 Mohd. Kasim had already appeared before the court on two dates for the purpose of recording of his evidence and the witness was duly cross-examined by Sh. Gaurav Vashishth, Ld. Amicus Curiae on 08.03.2018. Furthermore, since the present case is pending since the year 2016, it was observed that under these circumstances, no further opportunity can be granted to the accused to further cross-examine PW-8 Mohd. Kasim and thus, the application was dismissed.

4. The petitioner has assailed the order dated 31.03.2023 passed by the Ld. ASJ, Karkardooma Courts, in FIR No. 854/2015 under Sections 302/201 IPC registered at PS New Usmanpur.

5. I have heard the Ld. counsel for the petitioner, Ld. APP for the State and perused the records of the case.

6. It is vehemently urged by the Ld. counsel for the petitioner that the petitioner has been falsely implicated in this case at the instance of complainant and is in judicial custody since 28.08.2015. He further submitted that the impugned order has been challenged by the petitioner as though the PW-8, namely, Mohd Kasim was examined by the Ld. Amicus Curiae but he failed to cross-examine the witness PW-8 properly as he has not been cross-examined on certain material aspects and therefore, the petitioner wishes to recall PW-8 Mohd. Kasim for his further cross-examination

7. On the other hand, it is submitted by the Ld. APP for the State that the foundation of the revision petition which has been filed by the present petitioner in itself seems quavery as an order passed by the Ld. ASJ under Section 311 Cr.P.C. is an interlocutory order and the same cannot be challenged by filing a revision petition. Ld. APP for the State in support of her contention has also placed reliance upon the judgment of the Hon'ble Supreme Court in Sethuraman vs. Rajamanickam, [2009(5) SCC 153] wherein, it was categorically held that the order under Section 311 Cr.P.C. is purely an interlocutory order and accordingly, the present revision petition is not maintainable.

8. In my considered view, the contention of Ld. APP for the State that no revision petition is maintainable in light of the judgment in the matter of Sethuraman (supra) has force in it. The relevant portion of the abovementioned judgment is reproduced hereunder:

"5.....Secondly, what was not realized was that the order passed by the Trial Court refusing to call the documents and rejecting the application u/s 311 Cr.P.C., were interlocutory orders and as such, the revision against those orders was clearly barred u/s 397(2) Cr.P.C. The Trial Court, in its common order, had clearly mentioned that the cheque was admittedly signed by the respondent/accused and the only defence that was raised, was that his signed cheques were lost and that the appellant/complainant had falsely used one such cheque. The Trial Court also recorded a finding that the documents were not necessary. This order did not, in any manner, decide anything finally. Therefore, both the orders, i.e. one on the applicati