By this petition under section 397/401 Cr.P.C. the petitioner, who is being tried under section 376 of the Indian Penal Code in Sessions Trial No. 174/94 has challenged the order dated 2.5.1995 whereby his application for recalling two of the prosecution witnesses for cross-examination has been rejected.

The contention of the learned counsel for the applicant is that the applicant was represented by counsel Shri Chandrakar, who is a Junior counsel having been enrolled as an Advocate in the year 1994. The applicant having felt that he is not properly defended, engaged senior counsel to defend him. Senior counsel Shri Afzal Hussain, on going through the record moved an application under section 311 of the Code of Criminal Procedure for recalling the two witnesses, prosecutrix Saraswatibai (P.W. 7) and her husband Santosh (P.W. 8) for further cross-examination as no question were put on the prosecutrix regarding sexual intercourse by consent or by use of force, relating to injuries on the person of the prosecutrix and the manner in which the occurrence took place. De prosecutrix was also not confronted with her previous Statement and the first information report. To demonstrate that there was no effective cross-examination, the applicant read the copies of tile statement of Saraswatibai (P.W. 7) and Santosh (P.W. 8). Learned counsel for the applicant relied on the decision in Dinesh v. State of M.P. (1991 (1) MPWN 14= 1991 MPLJ 431); Stateof M.P. v. Pahalwan Singh (1977 (I) MPWN Note 157) and Nanalal v. State of M.P. (1982 MPWN Note 5).

After hearing counsel am of the opinion that the application made by the applicant is not for the purpose of vexation or for delaying the case or for delaying the ends of justice. On the other hand on going through the cross-examination, it is apparently clear that there is no effective cross-examination and if the applicant is not allowed to cross-examine further, that will defeat ends of justice, us the counsel representing the applicant was a Junior counsel who has not even put in one year's practice, at the Bar.

True the power to recall a witness for re-examination or cross-examination is discretionary and vests in the trial Judge but that has to be exercised by a proper exercise of judicial discretion.

In the instant case after giving due consideration to the facts of the case and the statement of the two witnesses I am of the opinion that the interest of justice demands that the applicant deserves an opportunity of further cross-examination.

Accordingly, the revision is allowed. De trial Court is directed to recall the two witnesses, namely, Saraswatibai (P.W. 7) and Santosh (P.W. 8). For that summons be issued in ordinary manner as well as by registered post and Hamdast notice be also given to the counsel for the applicant giving a fix date of bearing of this month only. If on the date so fixed, the applicant fails to cross-examine the aforesaid two witnesses on any count, he shall not be permitted for further cross-examination.