ORDER

With the consent of learned counsel for the parties, the matter is heard finally.

This application filed under Section 482 of Cr.P.C. assails the order dated 20.5.2022 passed in S.T. No.411/2021, whereby the application preferred by the applicant under Section 311 of Cr.P.C dated 28.4.2022 is dismissed by the court below.

Learned counsel for the applicant submits that the applicant is a poor person, who was given legal aid by the department. Since his previous legal aid counsel did not effectively cross - examine the prosecution witnesses, the PW-1, PW-4, PW-5, PW-6 and PW-7 may be recalled for their cross- I.L.R. (2014)

M.P. 246 (Prakash and others Vs. State of M.P.). Government's counsel supported the impugned order.

I have gone through the impugned order, in which reliance is placed on

2019 CRI. L.J. 4579

(Ballu Khan @ Ballu Kha @ Jahoor Shah Vs. State of M.P.). Cr.R. No.5615 of 2019

"Learned Court below has considered the judgment of this Court in Hari Singh (supra) and based its judgment on the judgment of the Supreme Court in Yakub Ismail Bhai Patel (supra). Learned counsel for the applicant has not brought those judgments to show that the Court below has committed an error in relying on the said judgments. He has not cited any judgment. It is trite law that when a reasonable opportunity of cross-examination has been granted and witness is cross-examined by the counsel for accused, merely because a Senior Lawyer wants to cross- examine the same witness or certain questions were left out, permission cannot be granted. The Supreme Court in AG v. Shiv Kumar

Yadav and Anr 2015 AIR SCW 5302

"15 object of law, it cannot be understood that recall can be allowed for the asking or reasons related to mere convenience. It has normally to be presumed that the counsel conducting a case is competent particularly when a counsel is appointed by choice of a litigant. Taken to its logical end, the principle that a retrial must follow on every change of a counsel, can have serious consequences on conduct of trials and the criminal justice system".

Soneram Rathore vs. State of

M.P. [2015(2) M.P.L.J. (Cri.) 68

"10 when the case was proceeded for examination of accused to fill up the lacuna, the application has been filed under Section 311 of Criminal Procedure Code. No application which will tantamount to the filling in the lacunae of the case could be permitted. Therefore, the evidence being sought to be introduced by the defense after a lapse of six months to fill up lacuna is not permissible. Otherwise also the petitioner accused can enter into its defense and substantiate the same by evidence relating to release from the custody on 6.12.2012 by filing proper documents. Therefore, no prejudice will be caused to the petitioner accused.

Popatlal Jethabhai Shah (supra) held that, where application for recalling of the prosecution witness was filed on the ground that the new counsel had been engaged, as the earlier counsel could not elicit some material contradictions, the application not being bona fide was disallowed".

[Emphasis supplied]

In my view, Court below has taken a plausible view which does not warrant any interference in revisional jurisdiction.

dismissed."

In the light of aforesaid judgments, it can not be said that court below has committed any error of law in declining the prayer arising out of application filed under Section 311 of Cr.P.C.

dismissed.

(SUJOY PAUL)

JUDGE

bks