Once a witness is examined as a prosecution witness, they cannot be recalled for examination or cross-examination based on subsequent affidavits.

V.C. Maheshwari, J.

1. Shri Narendra Nikhare, learned counsel for the applicant. Shri Akhil Singh, learned Panel Lawyer for respondent/State on advance copy.

2. As per Memo of revision this petition is preferred against the order dated 4-12-2004 but while asking from the counsel then he submitted that in fact this revision petition is preferred against the order dated 29-12-2004 but due to over sight wrong date has been mentioned.

3. With the permission of the Court it is corrected by him in the original record. Registry is directed to correct the date in the office record and take assistance of the counsel for applicant, if necessary. Heard on admission. With the consent of the learned counsels of the parties this petition is heard finally.

4. This revision petition is directed against the order dated 29-12-2004 passed by the Sessions Judge, Raisen in S. T. No. 136/03, whereby application filed by the applicant under section 311 of Criminal Procedure Code has been dismissed.

5. The facts in brief, which are necessary for disposal of this revision, are that S. T. No. 136/03 is pending for an offence under section 302 of Indian Penal Code and sections 25 and 27 of Arms Act and during the trial Phool Singh, Vishnu @ Vishwanath Singh, and Hari Singh @ Bade Guddu @ Pappu were examined as prosecution witnesses before filing the said application under section 311 of Criminal Procedure Code, after recording their statement on oath, as alleged by the applicant the abovesaid witnesses had deposed their separate affidavits on 6-11-2004 before the Notary. All these affidavits were submitted before the trial Court and also an application under section 311 of Criminal Procedure Code, and in view of all these three affidavits prayer for recalling these witnesses for further examination was made which was opposed by the prosecution, by passing elaborate impugned order the abovesaid application was dismissed as such the prayer is rejected. Hence this revision.

6. Learned counsel of the applicant submitted that even after recording evidence of prosecution witnesses, if any affidavit/affidavits sworn by him/them then in view of these new circumstances and specially on the basis of affidavits the concerning witnesses should be recalled and opportunity of further examination should be given. In support of his contention he placed reliance on a reported case Mangilal v. State of M.P. 1997 (1) MPWN 138 page No. 204 in which it is held that:

The counsel for petitioners submits that an eye witness namely Bhola Ram s/o Shri Kanhai Ram has filed an affidavit to the effect that he had not seen the occurrence. This affidavit is dated 7th February, 1997. On the basis of this, it is submitted that this Bholaram who had earlier appeared as prosecution witness as P. W. 1 be permitted to be cross-examined. Reliance is being placed on a decision given by the Allahabad High Court reported as Sukkhan and Another v. State of U.P., 1988 (1) Crimes 245. Circumstances were similar in the aforementioned case. After the statement was recorded in the Court an affidavit was filed. Allahabad High Court observed that it is natural and proper that such a person should be summoned afresh under section 311 of the Criminal Procedure Code and he should be confronted with the statement contained in the affidavit.

7. He further referred 2000 (1) MPU 8 , Mansingh v. State of M.P. in which it is held that:

Criminal Procedure Code (2 of 1974), section 311 : Prosecutrix in affidavit stated that report against applicant/accused was not' true - In view of affidavit of prosecutrix it is necessary to call her again and be permitted to be examined and cross examined - Trial Court directed to resummon prosecutrix for examination and cross examination. Revision allowed. In view of above cited decision prayed for allowing this revision petition.

8. On the other hand Shri Akhil Singh, learned Panel Lawyer for State has supported the impugned order and submitted a judgment rendered by the Apex Cou