JUDGMENT

Umesh Chandra Sharma, J.

Heard Sri Shad Khan holding brief of Sri Mumtaz Ali, learned counsel for the applicant, Sri Pankaj Kumar Tripathi, learned A.G.A. For the State and perused the record.

2. This application has been moved for quashing the order dated 20.10.2022 passed by A.S.J Court No. 2 Bulandshahr whereby he rejected the application under section 311 Cr.P.C for recalling the witnesses PW-2, PW-3, PW-6, PW-8 and also to direct the learned trial court to recall the aforesaid witnesses for cross examination for proper and fair adjudication of S.T. No. 1401 of 2010 arising out of crime no. 203 of 2009, under section 147, 148, 149, 302 and 120-B I.P.C Police Station Sikandrabad District - Bulandshahr.

3. In brief, facts of the case are that during the course of the trial the applicant has been in jail since 20.12.2010. Seven Session trial cases are consolidated together and leading case is S.T. No. 853 of 2009, the applicant is a very poor person. Due to non payment of fees, local counsel did not cross examine PW-2 Rizwan Ansari, PW-3 S.I Hari Singh, PW-6 Mohsin and PW-8 I.O Virendra Singh. The applicant somehow recently engaged Mr. Krishn Kumar Saxena advocate as his counsel who moved an application under section 311 Cr.P.C on 19.10.2022 and requested the trial court to recall the aforesaid witnesses for cross-examination on behalf of the applicant.

4. Prior to that an application no. 98A1 had been moved on behalf of the applicant for recall of the witnesses PW-1 to PW-3 for cross examination and the then learned trial judge vide order dated 9.10.2012 had allowed the application with the direction that the application shall remain deferred under Section 231 (2) Cr.P.C. Despite such direction, the said witnesses were never recalled for their cross examination by the trial court. The cross examination of the aforesaid witnesses is very significant for proper and fair adjudication. The learned trial court without applying judicial mind and without perusing the previous order rejected the recall application in a routine manner. Hence, it is expedient for the ends of justice for invocation of inherent powers under Section 482 Cr.P.C by this court.

5. All the papers referred in the petition are annexed with the affidavit.

6. From the perusal of the impugned order it is very much clear that the learned trial court did not peruse the Order Sheet that so far as the cross examination of the PW-1 to PW-3 is concerned, applicants application has already been considered by the then learned trial judge on 9.10.2012 in view of Section 231 (2) Cr.P.C. It has also not been considered that for an accused who is in jail for such a long period, it is very much difficult to defend himself if his family members and the counsel are not cooperative with him. The scheme of the examination of the witnesses has been enumerated in chapter - X of The Indian Evidence Act and according to Section 137 of the Act, the witness would be called for his examination in chief, cross examination and re-examination if the party calling him wants his re-examination. There is no provision in Indian Evidence Act that if on any particular date, the witness could not be cross examined by the opposite party, he would not be again recalled for cross examination. However, if the witness could not be cross-examined in spite of sufficient opportunity provided by the Court, cross examination may be closed or if the accused refuses to cross examine the witness, the cross examination might be closed. Certainly, the closer of the cross-examination might be opened if due to some unavoidable circumstance, the witness could not be cross examined on beh