1. With the consent of the parties, the matter is heard finally at motion stage.

2. This revision has been preferred by the applicant under Section 397/ 401 of Code of Criminal Procedure against the order dated 9.10.2009 passed by Special Sessions Judge, Shivpuri in S.T.No.4 of 2009 by which, application filed by complainant/prosecutrix for her re-examination has been dismissed.

3. The facts of the case in brief are that on report of one Kunwar Bai Koli, Crime no. 109 of 2008 is registered at PS Banmorkalan, Distt. Shivpuri for offence under section 366 and 376/34 of IPC against applicant and co-accused. After investigation, charge sheet was filed in the Court. Case was committed in the Sessions Court and Sessions Trial No.4 of 2009 is pending in that Court. Thereafter, complainant was examined in the Court on 28.3.2009. Copy of her statement is Annexure p/@. Then after some time, complainant/prosecutrix filed one application with her affidavit to get herself re-examined again. Copies of the application and affidavit are annexed as Annexure P/3 and P/4. That application was rejected by the Special Judge, Shivpuri on 9.10.2009. Hence, this revision for set-aside that order.

4. It is contended on behalf of the applicant that order passed by Special Judge, Shivpuri in Session trial No.4 of 2009 rejecting application of complainant is illegal, arbitrary and against settled principles of law and liable to be quashed. Permission should have been granted for her re-examination. Learned counsel for the applicant placed reliance on the case of Mangilal vs. State of M.P. 1997 (1) MPWN 138, Mansing vs. State of M.P. 1999 (II) MPWN 199 = 2000 (1) MPLJ S.No. 8 and Shahid Roshan Jameervs. State of M.P. 2002 (1) MPWN 100=2002 (3) MPLJ 354. In these cases, it is held that if a person already examined files affidavit after recording his statement in Court, then that witness/complainant should be called again and be permitted for examination under Section 311 of Cr.P.C.

5. Learned counsel for the respondent on the other hand has opposed the application and submitted that there is no illegality or error in the order passed by the trial Court.

6. Heard learned counsel for the parties and perused the documents on record.

7. In the present case, prosecutrix was examined on 28.3.2009. Thereafter after seven months of examination, she has filed one affidavit for reexamination on the ground that in the affidavit she has stated that in fact, no incidence of rape has been committed with her and earlier what she has stated in the Court was false.

8. In case of Mishrilal and Others v. State of M.P. and Others 2005(2) Vidhi Bhasvar 147 = (2005) 10 SCC 701, Hon. Apex Court has held that once a witness was examined-in-chief and cross-examined fully, such witness should not have been recalled and re-examined to deny the evidence he had already given before the Court, even though that witness had given an inconsistent statement before any other Court or forum subsequently. And witness could be confronted only with a previous statement made by him.

9. Further in State of M.P. v. Badri Yadav and Another 2006(2) JLJ 431 = (2006) 9 SCC 549, Apex Court has held that accused's application for compelling attendance of any prosecution witness, who had been examined, cross-examined and discharged, to be juxtaposed as defence witness, held not maintainable. The Court has power to reject such application on ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. In that case, two witnesses were examined as eyewitnesses and then cross-examined and discharged but about 5 years after recording of their statements as prosecution witnesses, they were allowed to be examined as defence witnesses when they resiled completely from their previous statements as prosecution witnesses. It is held that their subsequent statements cannot be acted upon and such defence witnesses are liable to be charged under Section 193 of IPC