JUDGMENT Poonam Srivastava, J.
1. Heard learned counsel for the applicant, Sri K.K. Dwivedi and Sri R.P Dwivedi Advocates for the opposite party No. 2 and learned A.G.A for the State
2. This application has been filed challenging the order dated 26.7.2005 passed by the Additional District and Sessions Judge Court No. 16, Agra in Sessions Trial No. 582 of 1998 whereby the application on behalf of the applicant under Section 311 Cr.P.C. has been rejected. The applicant is complainant in the aforesaid session trial. The assertion made on behalf of the applicant is that the accused are influential and moneyed people and are closely acquainted with the gangsters. At the time of evidence, the statements of PW-1 Bramh Lal, PW-2 Jagat Singh were recorded, they were under pressure as they were threatened not to depose against the accused. In the circumstances, a request was made to recall the said witnesses, as they had not supported the prosecution case. The application was rejected. This order has been challenged in this application. A perusal of the order of the learned District and Sessions Judge reveals that the applications 85 Kha, 106 Kha and 107 Kha were moved on previous occasion and they were decided on merit vide order dated 2.8.2003. The prayer for re-examining the said witnesses was rejected and this application has once again been moved on the same grounds and, therefore, it was held to have no force and was accordingly rejected.
3. Learned counsel for the applicant has placed reliance on a decision of the Apex Court in the case of Jahira Hahibulla H. Sheikh and Anr. v. State of Gujrat and Ors., 2004, Criminal Law Journal, 2050. Emphasis has been laid that Section 311 of the Code consists of two parts; (i) giving a discretion to the Court to examine the witness at any stage, and (ii) the mandatory portion which compels the Court to examine a witness if his evidence appears to be essential to the just decision of the Court. Only if the court feels that it is necessary to act in terms of Section 311 Cr.P.C. and also with a view to subserve the cause of justice, the witnesses can be recalled. In the instant case, the application has been moved at the behest of the prosecution to re-examine their own witnesses as they had failed to support the prosecution case. It has not been mentioned as to whether these witnesses were declared hostile or not. The application moved under Section 311 Cr.P.C. mentions that there was some compromise between the complainant and accused and subsequent to the evidence of the witnesses, they backed out from the agreement, as such this application under Section 311 Cr.P.C. was moved on 30.6.2005. This alone cannot be a ground for recalling the witnesses." Besides, the learned Sessions Judge has clearly stated in his order that on a previous occasion an application on these very ground was dismissed which was never challenged in any superior court. In the circumstances, if the application is allowed, it would amount to reviewing its earlier order which can not be done in view of the principle laid down by the Apex Court in the case of Adalat Prasad v. Roop lal Jindal .and Ors. 2004(50), A.C.C., 924, The learned Magistrate could not review its earlier order as the Criminal Procedure Code do not contemplate such a situation.
4. For the reasons discussed above, this application lacks merit and is accordingly rejected.