The right to seek relief under Section 311 of Cr.P.C. can be waived by the petitioner after final arguments are heard and the case is fixed for judgment.

B.D. Rathi, J.

1. Heard finally with the consent of both the parties.

2. This revision petition under Section 397/401 of Cr.P.C. assails the order dated 16/1/2015 passed in SST No. 93/14 by the learned Additional Sessions Judge, Karera, district Shivpuri whereby the application under Section 311 Cr.P.C. preferred on behalf of the accused-petitioner has been dismissed on the ground that the witnesses have already been examined/cross- examined at length and thereafter case has been fixed for final arguments.

3. As per the fact of the case, the petitioner/accused is facing prosecution for the offence punishable under Sections 363, 366, 376of I.P.C. During the course of trial, Murarilal (PW-1), Poonam (PW-2), Smt. Kiran (PW-3), Badam Singh (PW-4), Dr. A.K.Sharma (PW-5), Ramprakash Sharma (PW-6), Dr. Neerja Sharma (PW-7), Dr. K.P. Sharma (PW-8), Smt. Prabhawati (PW-9), Surendra Pal Singh (PW-10) on behalf of the prosecution and from defence, Akbari Haisan (DW-1) and Rafiq (DW-2) have already been examined. The cross-examination of the prosecution witnesses as mentioned above was conducted by Shri K.K.Shrivastava, Advocate appointed by the petitioner. In the meantime, one application under Section 311 of Cr.P.C. was filed by the petitioner on the ground that Shri K.K. Shrivastava, is a junior counsel having no much wide experience of conducting examination/cross-examination of the witnesses especially in such kind of trial cases and therefore the petitioner wants to engage some other counsel for proper examination/cross-examination of the witnesses. Taking the aforesaid grounds, the application under Section 311 Cr.P.C. was moved by the accused/petitioner which has been dismissed by the trial court as mentioned above, hence, the revision before this court.

4. Learned counsel for the petitioner reiterated that the counsel engaged by the petitioner has failed to conduct cross- examination of witnesses properly; that material portions of the evidence available on record have not been put to the witnesses to contradict their statements; the failure of the counsel to elicit these contradictions precludes the petitioner from putting forth an effective defense and in such circumstances, the petitioner moved an application under section 311 of Cr.P.C. by expressing his wishes to engage Shri Prem Singh Bhadoriya, Advocate but the learned trial court failed to appreciate the averments taken above and rejected the application. It is submitted by the counsel that the change of the counsel shall not improve the matter for the petitioner and no prejudice would be caused to the prosecution if the application is allowed. On the other hand, the accused would be more prejudiced on account of the failure of his counsel to effectively cross-examine the witnesses. Therefore, it is submitted that the present is a fit case where in the interests of justice, the application should have been allowed by the trial court.

5. Per contra, learned Public Prosecutor for the State, opposed the submissions aforesaid on the ground that on perusal of the statements and cross-examination of the witnesses, it is vividly clear that all the witnesses have been cross-examined at length. The entire defence has been very well put before the witnesses during their cross-examination and apart that when the prosecution has already examined its witnesses and the defence evidence was already led and the case has been fixed for pronouncement of the judgment after hearing final arguments of both the sides, the right to seek relief under Section 311 of Cr.P.C. stands automatically waived and cannot be invoked. It is therefore prayed that the petition may be dismissed.

6. Having regard to the arguments, the entire case has been examined.

7. In order to properly appreciate the contentions advanced above by the counsel for the parties, Section 311 Cr.P.C. is reproduced as under :-

311. Power to summon material witness, or examine person present.

"Any court may, at any stage of any inqu