Allowing petition under Section 311 Cr. P. C. cannot be construed as abuse of process of law.

This Criminal Revision is directed against the Interlocutory Order, dated 112. 2002 made in C.M.P.No.778 of 2002 in STC No.68/90 on the file of the Special Court under the Essential Commodities Act, Coimbatore.

2. The revision petitioner is the accused No.1 in the case pending before the court below. The first respondent herein filed the criminal complaint under Section 200 (a) of Criminal Procedure Code on the ground that the accused had contravened and violated section 19 (1) of Fertiliser Control Order 1985 and that the same is punishable u/s 7 (i) and (ii) of Essential Commodities Act.

3. The first respondent/complainant had filed the Interlocutory Application in C.M.P.No.778 of 2002 under Section 311 of the Code of Criminal Procedure to recall P.W.1 for the purpose of further examination, for which, it is stated by the first respondent, before the trial court, that due to inadvertence, while P.W.1, Agricultural Officer Thiru.Iqbal was examined, certain pages of the stock register were left out from marking, though they are vital documents for the purpose of establishing the prosecution case and on that ground, the prosecution pleaded for recalling P.W.1, so as to examine the witness further. The revision petitioner/A1 had raised his objection, by way of filing counter. The trial court considering the arguments advanced by both sides, has allowed the petition to recall P.W.1. Against which, this Criminal Revision Petition has been preferred by the petitioner / A1.

4. Learned counsel appearing for the revision petitioner submits that the petition has been filed before the trial court, under Section 311 of the Code of Criminal Procedure to fill up the lacuna in the prosecution case. According to the revision petitioner, there is no reason as to why the witness P.W.1 has to be recalled as the second time, especially when the same witness had been permitted to be re-examined, and some documents were marked through him. According to the learned counsel for the revision petitioner, the impugned order passed by the trial court, permitting to recall P.W.1 for marking document would prejudice the petitioner/A1.

5. The first contention raised by the learned Government Advocate appearing for the first respondent is that the revision petition itself is not maintainable, since the revision petitioner cannot challenge the order passed in the Interlocutory Application filed under Section 311 Cr.P.C, in view of Section 397 (2) Cr.P.C. Further, submitted that as per the finding of the court below, by recalling P.W.1 and marking the relevant pages of the document, which was already produced before the court, the revision petitioner would not be prejudiced. In support of his contention, Mr.Hasan Mohamed Jinnah, the learned Government Advocate cited the following decisions reported in 1) 1985 Crimes (1) 121, Umed Singh & others vs. Devi Singh & others and 2) 1980 Crl.L.J 1018, Dawarka Dass vs. State of Himachal Pradesh.

6. The learned Government Advocate further submits that the case is of the year 1990 and still pending before the trial court on trivial grounds. After the closure of the prosecution evidence, the case was posted for questioning the accused under Section 313 Cr.P.C and the questioning was also over. He further submitted that the criminal revision preferred by the petitioner / A1 is not legally sustainable, in view of Section 397 (2) of the Code of Criminal Procedure.

7. In the decision, Shailendra Kumar vs. State of Bihar, reported in 2002 SCC (Cri) 230, the Honble Supreme Court has held as follows "Section 311 empowers the court to summon material witnesses though not summoned as witnesses and to examine or recall and re-examine if their evidence appears to it to be essential to the just decision of the case. Section 311 reveals that it is of a very wide amplitude and if there is any negligence, laches or mistakes by not examining material witnesses, the court.s function to render just decision by examining s