The trial court has the discretion to recall a witness for cross-examination under Section 311 of the CrPC, but this discretion must be exercised judiciously and with caution. The court must consider the reasons for the witness's absence, the importance of the witness's testimony, and the potential prejudice to the accused if the witness is not recalled.

Heard Finally.

2. This application under Section 482 of Cr.P.C. has been filed against the order dated 19-1-2018 passed by Shri Ramesh Kumar Shrivastava, 1st A.S.J./Special Judge (Prevention of Corruption Act), Morena in Special Sessions Trial No.11/2015, by which the application filed by the applicant under Section 311 of Cr.P.C. has been rejected.

3. The necessary facts for the disposal of the present application in short are that the applicant is facing trial for offence under Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act.

4. The applicant filed an application under Section 311 of Cr.P.C. seeking recall of Ram Gopal (P.W.5) on the ground that the witness could not be cross examined because of absence of the counsel and therefore, his right to cross examine the said witness has been closed. It was further mentioned that the cross examination of the said witness is necessary in the interest of justice, otherwise, the applicant would be deprived of his right to putforth his defence. The application filed under Section 311 of Cr.P.C., reads as under :

^^vkosnu i= varxZr /kkjk 311 n0iz0 lafgrk

Jhekuth]

1- fuosnu gS fd izdj.k es vfHk;kstu lk{kh dz- 5 ds :i es jkexksiky dk dFku djk;k x;k gSA mDr lk{kh ij iw.kZ:i ls izfrijh{k.k ugh gks ik;k gSA U;k;ky; }kjk izfrijh{k.k dk vfHkHkk"kd ds mifLFkr u jgus ds dkj.k gd lekIr dj fn;k gSA

2- ;g fd mDr lk{kh ls iqu% izfrijh{k.k fd;k tkuk vko';d gS blls U;k;ky; dks U;k;nku esa lqfo/kk feysxh vkSj vfHk;qDr viuk cpko mfpr :i ls izLrqr dj ldsxk vU;Fkk og viuk cpko mfpr :i ls ugh j[k ik;sxk rFkk izkFkhZ U;k;nku ls oafpr gks tkosxkA

vLrq fuosnu gS fd vfHk;kstu lk{kh dz- 5 jkexksiky dks iqu%izfrijh{k.k gsrq ryc fd;s tkus dh d`ik dh tkosA^^

The said application was opposed by the Public Prosecutor.

5. The Trial Court, after considering the fact that in fact it was the counsel for the applicant, who had left the cross examination of the witness in the midway, rejected the application on the ground that in case, if it reconsiders the facts and incident which took place on 26-5-2017, then it would amount to review, which is not permissible and accordingly the witness cannot be recalled for cross examination. Challenging the order dated 19-1-2018, it is submitted by the counsel for the applicant, that in fact the Trial Court was not dictating/ narrating the answers which were being given by the witness and it was objected by the counsel for the applicant and thus, a situation had arisen, under which it was not possible for the counsel for the applicant, to continue with the cross examination, therefore, he left the Court room. It is further submitted that even if it is presumed that the conduct of the Counsel for the applicant was not correct, even then, the Trial Court should not have closed the right of the applicant to cross examine Ramgopal (P.W.5) and should have appointed an amicus curiae so that he could have cross examined Ramgopal (P.W.5). Thus, the Trial Court has committed a material illegality by closing the right of the applicant to cross examine Ramgopal (P.W.5). To buttress his contentions, the counsel for the applicant has relied upon judgment of Supreme Court passed in the case of Md. Sukur Ali Versus State of Assam reported in (2011) 4 SCC 729. It was further submitted that the Trial Court had recorded an incorrect fact in the order sheet dated 26-5-2017 to the effect that the counsel for the applicant, after leaving the Court room, had again visited the Court and when it was requested by the Court, that the counsel may cross examine the witness in question answer form, then it was declined by him. It is submitted that in fact the counsel for the applicant had never visited the Court room of the Trial Court again and he was never given an option to cross examine the witness in question and answer form. On 4-3-2018, the applicant has filed an affidavit of Shri Harswaroop Maheshwari, the counsel for the applicant and of Ramjilal Pachauri, the Associate Counse