MUBARIQUE SHAH Vs. STATE OF MP

JUDGEMENT

(1.) THE applicants have filed this Criminal Revision under section 397 of the Code of Criminal Procedure against the order passed by First Additional Sessions Judge, Dewas on 26.2.2000 in Sessions Trial No. 172/97.

(2.) THE submission of Shri Jain is that on 26.2.2000 the case was fixed for defence witnesses but the witnesses were not present. He filed an application under section 311 of the Code of Criminal Procedure for recalling the prosecution witnesses, namely PW 1 Mangilal, PW 3 Babulal and PW 8 Shivajiram on the ground that material contradictions and omissions could not be recorded.

(3.) THE further submission of Shri Jain is that under the provisions of section 311 of the Code of Criminal Procedure, the Court has wide powers to recall the witnesses at any stage of enquiry. He relied on the decision of Dinesh S/oSunderlal v. State of Madhya Pradesh, reported in 1991 (I)MPWN 14= 1991 MPLJ 431, in which the application for recalling the eye witnesses was allowed on the ground that some valuable information received by the accused was made in the said application and it was in that context the application was allowed. But here in this case the applicants want to recall and recross examine the prosecution witnesses only on the ground that they could not ask some material questions from those witnesses. Failure of putting any question during the cross examination does not mean that proper opportunity to cross examination was not given and cannot be a ground to recall the witnesses which obviously will amount to filling up the lacuna. No doubt the Court has unbridled power to resummon the witness before the conclusion of the trial but that discretion has to be exercised on sound judicial discretion. Re calling and re examination of witness cannot be allowed to fill up the lacuna even in the defence evidence. In this case no ground to the surprise of the defence is made out for purposes of recalling the witnesses. The sessions trial is pending since 1997. The application was filed on the last date of hearing when the defence witnesses were not present.