The right to cross-examine witnesses is a fundamental right of the accused and the power under Section 311 Cr.P.C. should be invoked to ensure fairness of a trial, even if it causes prejudice to the prosecution.

The petitioner, Dalveer Singh, has challenged the order dated 19-5-2008 passed by the Judicial Magistrate (First Class), No. 15, Jaipur City, Jaipur, whereby the learned Magistrate has rejected the petitioner's application under Section 311 Cr.P.C. for recalling five witnesses for the purpose of cross-examination. The petitioner is also aggrieved by the order dated 19-7-2008 passed by the learned Session Judge, Jaipur City, Jaipur, whereby the learned Judge has rejected the revision petition filed by the petitioner on the ground of non-maintainability.

2. The brief facts of the case are that the petitioner was facing trial for an offence under Section 409 IPC. During the course of the trial, sixteen witnesses were examined by the learned trial Court. According to the petitioner, prosecution witnesses Nos. 1 to 5 are eye-witnesses of the alleged incident. While PW-1 Jai Singh was examined on 18-2-2005, PW-2 Mohan Singh, PW-3 Kaan Singh, PW-4 Madan were examined on 23-8-2005. PW-5 Amar Singh was examined on 20-2-2006. After sixteen witnesses were examined, the petitioner moved an application under Section 311 Cr.P.C. for recalling the prosecution witnesses Nos. 1 to 5 in order to cross-examine them. However, by order dated 19-5-2008, the learned Magistrate dismissed the said application. Since, the petitioner was aggrieved by the order dated 19-5-2008, he filed a revision petition before the learned Judge. But by order dated 19-7-2008, the learned Judge dismissed the revision petition on the ground mentioned above. Hence, this petition before this Court.

3. Mr. Ashish K. Singh, the learned counsel for the petitioner, has raised the following contentions before this Court :––

Firstly, that an accused has a fundamental right of a fair trial. Secondly, in order to vindicate himself, the accused has a right to cross-examine the prosecution witnesses. In the present case, it is imperative that PW-1 to PW-5 be recalled as they happen to be the eye-witnesses of the alleged offence. Thirdly, that even if a mistake were made by the counsel for the accused, the accused cannot be made to suffer the consequences of non-cross-examination of the witnesses. Fourthly, that power of recall of a witness, granted by Section 311 Cr.P.C., is a vast power, which should be invoked in order to ensure fairness of a trial. Relying on the case of P. Sanjeeva Rao v. The State of A.P., (2012) 7 SCC 56 : (AIR 2012 SC 2242), the learned counsel has contended that even if there were an inordinate delay in filing an application under Section 311 Cr.P.C., even if there is prejudice being caused to the prosecution by recalling the prosecution witnesses, even then, the prosecution witnesses should have been recalled and should have been subjected to a cross-examination by the accused petitioner.

4. On the other hand, learned Public Prosecutor Mr. Peeyush Kumar has vehemently contended that firstly, the fault lies squarely on the shoulder of the counsel for the petitioner. For he failed to cross-examine the prosecution witnesses when they were produced in the Court. Secondly, the accused petitioner did not file his application for three long years. It is only at the tail-end of the trial, that the petitioner moved his application. Hence, it is a clever ploy to delay the trial. Thirdly, the power under Section 311 Cr.P.C. should not be invoked to permit the accused to plug in the gaping holes in his defence. Hence, the learned Public Prosecutor has supported the order dated 19-5-2008. Lastly, he has contended that the order dated 19-7-2008 is legally justified, as the petitioner had challenged an interlocutory order. But, Section 397(2) Cr.P.C. does not permit a revision petition to be filed against an interlocutory order. Thus, he has supported the order dated 19-7-2008.

5. Heard the learned counsel for the petitioner, and the learned Public Prosecutor for the State, and perused the impugned orders, and considered the case law cited at the Bar.

6. The entire crimina