TADDI RAMA RAO Vs. KONDI ASEERVADAM

JUDGEMENT

(1.) Mr Surya Rao, the learned counsel for the petitioners, contends that the complainant examined four witnesses including himself and the cross-examination of those witnesses was deferred by the accused till the charge was framed and after the charge was framed, the witnesses, P. Ws. 1 to 4 were recalled and cross-examined by the accused and re-examined and the learned Magistrate passed an order on 23-9-1976 stating that the presecution evidence was closed and the case is posted to 29-9-1976 for examination of the accused. But on 29-9-1976 the complainant filed a petition to permit him to examine an additional witness (PW 5) who was not examined before the charge was framed. The learned Magistrate allowed that petition and proceeded to examine him in chief. As the Junior Counsel did not expect this development, and did not find himself able to cross-examine the additional witness without preparation and as his senior was not available in the court and hence he could not proceed to cross-examine the addiiional witness (PW5), he filed a petition co adjourn the case to another day for the purpose of cross-exmination of the additional witness. But the learned Magistrate dismissed that petition, closed the prosecution evidence and he posted the case to 6-10-1976 for examination of the accused. On 6-10-1976 the counsel for the accused filed a petition to recall PW 5 the additional witness for purpose of cross-examination. But the learned Magistrate refused permission to the counsel for the accused to cross-examine P W 5 and consequently dismissed the petition.

(2.) Mr. Surya Rao, therefore, contends that the learned Magistrate committed error of law in not granting permission to the counsel for the accused to cross-examine the additional witness and the accused has right to cross-examine the additional witness who was examined unexpectedly and by denying the accused the right to cross-examine P W 5 prejudice is caused to the interests of the accused. He also contends that had PW5 been examined before the charge was framed, the accused could have right to cross-examine him along with P Ws. 1 to 4 and the accused is entitled to have the same right to cross-examine the witness even when he was examined as additional witness after the charge was framed and such a right, in fact, was given to the accused under section 246 (6). The learned counsel therefore, contends that the order of the Magistrate in refusing the permission to cross-examine the witness and consequently dismissing the petition Cr. M. P. No. 262/1976 amounts to abuse of process and hence this court should exercise its inherent powers under section 482 Cr. P. C. and secure ends of justice.

(3.) Sri D. Mohan Rao for the 1st respondent, on the other hand, contends that this petition is not maintainable. According to him, the petition filed by the petitioner before the Magistrate is only an interlocutory application and it was dismissed by the Magistrate and under section 397(2) Cr. P. C. revision is barred against such an interlocutory order. He also contends that when the petitioner failed to obtain a relief in the interlocutory application they are not entitled to resort to section 482 Cr. P. C.