Sudhir Kumar Saxena, J.:-

Heard learned Counsel for the petition­ers and learned AGA.

The petitioners through this petition have challenged the order dated 30.11.2011 whereby application for re­calling prosecution witnesses Balak Ram and Surendra Pal has been rejected.

2. It appears that the petitioners are accused under section 302 and 201 IPC. On 11.11.2010, prosecution exam­ined Balak Ram and Surendra Pal who had identified the skeleton as well as the clothes belonging to the deceased. It is mentioned in the order sheet that op­portunity for cross-examination has been given but none came to cross-examine, consequently, cross-examination was closed. On 30.11.2011, petitioners/accused moved application for recalling the above witness as for some reason they could not be cross-examined. This application has been rejected by the Trial Court vide order dated 30.11.2011. This very order has been impugned herein.

3. Learned Counsel for the peti­tioners submits that he was prepared to cross-examine now and one opportunity may be given. In the petition ground taken is that previous Counsel did not cross-examine as such, new Counsel has been engaged.

4. It is necessary to have a look at sections 309 and 311 Cr.P.C. Relevant provisions are quoted below:

"309. Power to postpone or adjourn proceedings-In every inquiry or trial the proceedings shall be held as expeditiously as possible, and in par­ticular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded:

Provided further that when wit­nesses are in attendance, no ad­journment or postponement shall be granted, without examining them, except for special reasons to be re­corded in writing."

Fourth proviso to section 309(2) which has been inserted by Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009) has taken care of such situation. The said proviso is reproduced below:

"(a) no adjournment shall be granted at the request of a party, ex­cept where the circumstances are be­yond the control of that party;

(b) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjourn­ment;

(c) where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be."

5. It is apparent that once witness is in attendance, adjournment has to be refused and has to be granted very rarely and in exceptional circumstances for which special reasons have to be re­corded. Even if case is to be adjourned for some reasons then adjournment would be granted only till next day. It is also evident that engagement of lawyer in other Court is not a ground for ad­journment and Court is not supposed to wait for Counsel, if witness is present in the Court. The Court is left with no op­tion but to record the statement of witness and pass further orders dispensing with the cross-examination.

6. In the case at hand, Trial Court has done the same. It recorded the statement of witnesses and as none came to cross-examine them, opportu­nity for cross-examination was closed. The order was strictly in accordance with amended provisions of section 309 Cr.P.C.

7. Section 311 Cr.P.C. gives a dis­cretion to the Court to recall or re-examine any person, if the evidence appears to be essential for just decision of the case. This provision has to be read with section 309 Cr.P.C. as both the pro­visions provide a light into the scheme envisaged by Code.

8. It has become a common prac­tice that once a witness of the prosecu­tion appears, defence would make all efforts to get the case adj

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