The court has the power and duty to summon or recall witnesses under Section 311, Cr.P.C. to ensure a just decision and meet the ends of justice, but this power should not be exercised to fill up lacunae in the prosecution case.

Parties counsel are present and since the relevant material has already been placed on record by the par ties with the affidavits, it is not necessary to summon the lower courts record.

2. This application in revision is directed against the order dated 5-9-98 passed by IIIrd Additional District and Sessions Judge, Sultanpur in S. T No. 85/90 under Sections 302/396/323/149/147/148, IPC, State v. Krishna Mohan and others, whereby the learned Sessions Judge al lowed the application moved on behalf of opposite party No. 2 for recalling PW1 for further cross-examination. The order ap pears to have been passed by the learned Session Judge in exercise of powers under Section311, Cr. P. C.

3. The facts relevant for the purpose of this revision in brief are that opposite party No. 2 alongwith others are facing trial before IIIrd Addl. Sessions Judge and in the said trial the stage of defence has reached. It further appears that after the statement of DW 1 was recorded and the General Diary (Dincharya Bahi of Lekhpal) had been brought on record wherein certain entries are said to have been made by PW 1 showing his presence at a place far removed from the place of incident, an application was moved by ac cused Sheetla Prasad for recalling P W 1 for further cross-examination with regard to the entries of the general diary of the lekhpal. This application was rejected by the learned Sessions Judge by the order dated 21-8-98 on the ground that the ac cused persons had sufficient opportunity to cross-examine the witness and that the Court did not think it necessary to recall the said witness for further cross-examina tion. It further appears that thereafter an application was moved on behalf of

another accused-opposite party No. 2 for recalling the said witness stating therein that the accused persons had no knowledge of the aforesaid entries at the time when PW 1 was cross-examined and therefore, for the ends of justice it was necessary that the defence be given an opportunity to effectively cross-examine the said witness regarding his presence at the place where he is said to be on duty at the relevant time. This time the learned Magistrate by the impugned order has al lowed the application and has recalled P W 1 for fur the rcross-examination.

4. Learned Counsel for the applicant vehemently argued before this Court that the impugned order amounts to reviewing the earlier order dated 21-8-98 passed by the Court below which was not permissible in law under the provisions of Section 362 of the Code of Criminal Procedure and in support of his argument he placed reliance on a number of decisions which I will refer in the later part oof this judgment.

5. In order to appreciate the argu ment of the learned Counsel for the ap plicant, it is necessary to have a glance on the provisions of Section 362, Cr. P. C. which runs as follows:

"362. Court not to alter judgment.- as otherwise provided by this Code or by any other law for the time being in force, no court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical arithmetical error. "

6. A plain reading of the above provisions will indicate that the bar created under Section 362, Cr. P. C. applies only to judgments and final orders whereby proceeding is disposed of. It could not be doubted that the prmiple applicable to judgments and final orders does not apply to interlocutory orders. This view of mine is supported by the decision in Sahdeo Tft pathi v. pipti Pasin, 1969 Cr. L. J. 1527, wherein it was held that the order rejecting prayer for cross-examination of a witness is not a judgment within the mean ing of Section 362, Cr. P. C, being in nature of interlocutory order, the Court, in the ends of justice, can allow the prayer made second time even on the same fact.

7. Learned Counsel for the applicant on the other hand relied upon the decision in the case of Sankatha Singh v. State of UP, AIR 1962 SC 1208