Accused cannot summon previously examined prosecution witnesses as defense witnesses without valid reasons under S.233, Cr PC.

1. By way of the present revision petition under S.397 read with S.401 of Cr PC the applicants have challenged the order dated 10-5-2016 passed by the 1st Additional Sessions Judge, Manendragarh, District Korea in Sessions Trial No. 11/2011 whereby the Court below has rejected the application under S.233 of Cr PC preferred by the applicants.

2. The facts in brief are that the applicants in the instant case are the accused in Sessions Trial No. 11/2011 wherein they have been charged for the offence under S.376 of IPC and the trial is going on against them since 2011. On 26-3-2012 the prosecutrix was examined before the Court below and was also elaborately cross - examined by the defence. Subsequently, after more than three years time, the prosecutrix filed an affidavit before the trial Court stating that there were certain compelling circumstances which made her file an FIR against the applicants and that after release of the applicants on bail, she got married to applicant No. 1 on 31-1-2015 and now she does not want to prosecute the applicants any further.

3. Later on, an application under S.311, Cr PC was filed by the applicants before the Court below on 4-2-2016 which was rejected on 15-2-2016 on the ground that no sufficient and strong ground has been made by the defence for recalling the prosecution witness for cross - examination invoking the powers under S.311 of Cr PC. Against the said rejection order dated 15-2-2016, the applicants preferred a revision petition before the High Court which was registered as Criminal Revision No. 205 of 2016. The said Criminal Revision came up for hearing on 22-3-2016 and before the Court could enter into the merit of the case, the applicants, at the outset, prayed for withdrawal of the criminal revision with liberty to approach the Court below by moving an application under S.233 of Cr PC which was allowed and the Criminal Revision was accordingly dismissed as withdrawn with the aforesaid liberty. However, the Co - ordinate Bench while allowing the withdrawal of the criminal revision had made an observation that while considering the application under S.233, Cr PC if moved by the defence, the interim order dated 15-2-2016 shall not come in the way of the defence. For ready reference the order dated 22-3-2016 passed in CRR No. 205/16 is reproduced hereunder :
'1. At the outset, learned counsel for the applicants submits that she be permitted to withdraw the instant criminal revision with liberty to file application to call the prosecutrix as defence witness when the applicants will enter upon defence, as per provisions of S.233 of the Code of Criminal Procedure , 1973 and the Court may consider such prayer without being influenced with the order dated 15-2-2016 on its merits.
2. On due consideration, the instant criminal revision is disposed of as withdrawn without any appreciation on its merit reserving the aforesaid liberty. Needless to mention that while considering any such application, the interim order dated 15-2-2016 shall not come in the way.'

4. A plain perusal of the order passed in Criminal Revision No. 205/16 two things admittedly are evident; firstly at the outset counsel for the applicants had prayed for withdrawal of the revision petition. Secondly, in paragraph 2, the Court had very specifically enumerated that the applicants are being permitted to withdraw the criminal revision without appreciation on its merit which clearly indicates that the applicants had voluntarily withdrawn the criminal revision without entering into the merit of the case so far as the veracity of the order dated 15-2-2