Honble VYAS, J.–Both these petitions are filed by the petitioner under Section 482, Cr.P.C. challenging order dated 5.9.2005 (in S.B. Criminal Misc. Petition No.1223/2005) whereby the trial Court has framed charge against the petitioner for offence under Section 3/25 Arms Act and order dated 11.7.2005 (in S.B. Criminal Misc. Petition No.1224/2005) whereby the trial court rejected the petitioners application moved under Section 311, Cr.P.C. for recalling witness Jaipal, P.W.6 for cross- examination. Both the impugned orders are passed in Sessions Case No.2/2005, arising out of C.R. No.412/2004, P.S. Raisinghnagar registered for offence under Section 341/302, I.P.C. The decision on S.B. Criminal Misc. Petition No.1224/2005 will dispose of both these petitions, therefore, I gather the facts from Petition No.1224/2005.

(2). The facts of the case indicate that the case was fixed before the trial Court on 25.4.2005 for prosecution evidence and, on that day, Shri Devendra Singh Romana, Advocate filed vakalatnama of the petitioner. On that date, the prosecution examined its witness Jaipal, P.W.6 and the witness was also cross-examined by the counsel for the accused petitioner who was representing the accused prior to filing of vakalatnama by Shri Devendra Singh, Advocate. On June 01, 2005, application was filed by petitioners counsel Shri Devendra Singh under Section 311, Cr.P.C., stating that he was engaged on 25.4.2005 itself on which date statement of prosecution witness Jaipal, P.W.6 was recorded and he was not in a position to go through the record of the case by that date, therefore, the witness Jaipal, P.W.6 may be recalled for cross-examination by him. The trial court rejected the application by him. The trial Court rejected the application by the impugned order dated 11.7.2005. The trial Court observed that the accused was being represented by his counsel and merely on account of filing vakalatnama by another counsel no right accrues for recalling the witness. The trial Court expressed doubt over the application and observed that it is not clear what cross-examination remained to be made.

(3). Adverting to S.B. Criminal Misc. Petition No.1223/2005, learned counsel for the petitioner submitted that earlier challan was filed against the petitioner for offence under Section 341/302 IPC but, subsequently, the police also filed challan against the petitioner for offence under Section 3/25 Arms Act on the ground that sanction was accorded later on. The genesis of controversy is that by order dated 5.9.2005 the trial Court ordered recall of the prosecution witnesses Bhaga, P.W.3 and Jaipal, P.W.6 to provide opportunity to the prosecution to prove its case though confining the recall of the witness to prove charge against the accused-petitioner for offence under Section 3/25, Arms Act.

(4). Counsel for the petitioner contended that it sounds ill at law in the mouth of the trial Court that it ordered the witnesses to be recalled granting opportunity to the prosecution to prove its case whereas the petitioners application in the same trial moved under Section 311, Cr.P.C. for recalling that very witness for cross-examination has been rejected. It is vehemently argued that while providing opportunity to the prosecution the Court below had no inconvenience in allowing the petitioners prayer for recalling the same witness for cross-examination by the petitioners counsel. Mr. Kumbhat argued that valuable right of the petitioner to defence is at stake and the petitioners counsel before the trial Court conscientiously moved application for cross-examination of the witness Jaipal, P.W.6 by recalling him and, therefore, while the trial Court, in its wisdom, ordered the witnesses to be recalled granting opportunity to the prosecution to the extent of charge against the petitioner for offence under Section 3/25 Arms Act it was a prejudicial approach negating opportunity to the defence to cross-examine the same witness though the counsel had mention

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