Honble SHARMA, J.–Heard counsel for the parties. The accused petitioner is facing trial for offence under Section 406 IPC and Ram Niwas, father of Mst. Guddi is a prosecution witness in the case. He was examined as PW5. His examination-in-chief was complete on 4.3.1999 and cross examination was closed on 10.2.2003. The accused petitioner filed an application under Sec. 311 Cr.P.C. on 24.5.2004 before the Trial Court with the prayer that he may be allowed to cross examine PW5 Ram Niwas and the learned Trial Court allowed the petitioners application on the same day. Feeling aggrieved by the order of the Trial Court, the complainant non-petitioner filed a revision petition. The revisional court vide its order dated 21.9.2004 accepted the revision petition and set aside the order passed by the Trial Court. Hence the present petition by the accused petitioner.

(2). It appears that the case was fixed on 10.2.2003 for cross examination of PW5 Ram Niwas, but the witness could not be cross examined for the reason that counsel for the accused was busy in some other court and accordingly the Trial Court closed the cross examination vide order dated 10.2.2003. In doing so, the Trial Court observed that case is pending since 1991 and therefore, no further opportunity can be given to cross examine the witness. In the opinion of Trial Court, the senior advocate was busy in some other court was no ground to adjourn the case. However, the case was fixed for recording the statements of remaining prosecution witnesses. The revisional court while disposing of the revision petition observed that since cross examination was already closed vide order dated 10.2.2003, the court cannot review its earlier order in view of the provisions of Section 362 Cr.P.C.

(3). It may also be noted that revision petition was filed by Ram Niwas who was simply a witness in the case. Though the revisional court held that Ram Niwas being a private party has no locus standi to file revision petition, still the revisional court exercised revisional powers.

(4). Mr. S.R. Surana appearing for the complainant non-petitioner has supported the impugned order and contended that impugned order is barred under Section 362 Cr.P.C. and has referred to a decision of the Apex Court in Hindustan Construction Co. Ltd. vs. G.K. Sengupta (1).

(5). I have gone through the case law cited at the bar. In the aforesaid case, the High Court declined to allow the petition under Section 311 Cr.P.C. in 1997, but in the year 2000 reviewed its earlier order and directed to summon P in evidence. In these circumstances it was held that the impugned order is barred under Section 362 Cr.P.C.

(6). In the case at hand, the order to close cross examination was passed on 10.2.2003 for the reasons mentioned in the order. Present is not the case where petitioner earlier also moved an application under Section 311 Cr.P.C. and the same was rejected and letter the application under Sec. 311 Cr.P.C. was allowed. In these circumstances the authority cited by the counsel for the complainant has no application to the facts of the present case.

(7). Learned counsel for the complainant has also relied upon Bindeshwari Prasad Singh vs. Kali Singh (2). This case was also considered by the revisional Court. In this case, the Apex Court held that Magistrates do not possess inherent powers and hence cannot review or recall any order passed by them. This case also has no application to the facts of the present case. Here, the Trial Court did not review or recall its earlier order dated 10.2.2003. At the time of passing the order dated 10.2.2003 the consideration for closing the cross examination was different than that which prevailed with the Trial Court while passing the order on the application under Section 311 Cr.P.C.

(8). In Shailendra Kumar vs. State of Bihar and Others (3), the Sessions Judge closed the prosecution evidence on 3.9.94. Thereafter the case was transferred to 2nd Additional Sessions Judge, Gaya, who by his o

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