V.D. Gyani, J.

1. Although it was a petition Under Section 397, Criminal Procedure Code, as initially filed, but at a later stage it was permitted to be converted into a petition Under Section 482, Criminal Procedure Code, possibly with a view to make the scope of interference wider.

2. By this petition the petitioner seeks to challenge the order dated 3-8-1990, passed by the 2nd Addl. Sessions Judge, Dewas, in S.T. No. 29 of 1988, thereby disallowing petitioner's application for recalling of two witnesses for the purpose of cross-examination.

3. Learned counsel appearing for the petitioner urged that the trial has been pending for over three years and the prosecution failed to produce witnesses on dates fixed and adjournments were granted to the State for production of witnesses, while the accused was refused an opportunity. Certified copies of the application and order-sheet dated 9-4-1990, as referred to in the impugned order, have now been produced by the learned counsel in support of his argument. Ramchandra and Suresh s/o Premnarayan, P.Ws. 9 and 10, respectively, were sought to be recalled on the ground that certain important questions were omitted to be put to these witnesses. This application was made while the Investigating Officer was still in the witness-box.

4. Going through the order dated 9-5-1990, the reason for rejection as assigned by the trial Court is that of effective cross-examination, as had already been done by a senior counsel on behalf of the accused and no justifiable ground was made out for recalling the witnesses. This application was again repeated, but the successor-in-office rejected the application in view of the earlier order dated 9-4-1990, passed by his predecessor.

5. Learned counsel for the petitioner submitted that what was being challenged before the trial Court was character of being an eye-witness, as claimed by witness Ramchandra and witness Suresh s/o Premnarayan (P.Ws. 9 and 10 respectively). While assailing their testimony a suggestion had in fact been thrown to witness Suresh that he was not present on the spot. Learned counsel states that after recording of their statements, some positive evidence as regards their presence at a different place at the time of the occurrence has come by, which the accused, could not have divulged at the stage of making an application as it would have posted the opposite party with prior knowledge and prejudiced the accused in the sense that having come to know as to what was being sought to be asked, the witnesses would not have stated the truth.

6. It was this constraint, which weighed and worked with the counsel, who made an application for recalling the above witnesses and it was for this reason that the application was dismissed as it failed to disclose any justifiable ground for recalling of witnesses named above.

7. Section 311, Criminal Procedure Code, is in two parts, the former Part thereof confers a discretion on the trial Court to recall a witness, while the latter part is mandatory in nature. It is obligatory on the Court to recall a witness for cross-examination if the evidence or further evidence of such a witness is essential for a just decision of the case. It depends on facts of each case and no hard and fast rule as such can be laid down. All that has been said so far by a catena of cases is that the discretion has to be exercised keeping in view the facts of each case and the paramount consideration is arriving at a just decision of the case. The earlier application was rejected by the learned trial Judge on 9-4-1990 on the ground that a senior counsel had already cross-examined the witnesses.

8. Going through the copy of the application filed by the accused, one would find that a clear statement about some valuable information received by the accused was made in the said application and it was in that context that a few important questions could not be put to these witnesses.

9. As noted above, the constraint and at times even by wa