ORDER K.N. Ojha, J.
1. Instant revision has been preferred against the order dated 26-3-2001 passed by learned Sessions Judge, Gautam Buddh Nagar, in Sessions Trial No. 1984 of 1999, State v. Jawahar Singh, under Sections 363, 366, 376, I.P.C. police station Jewar, district Gautam Budh Nagar, by which application moved by accused for cross-examination of PW1 and PW2 was rejected on 24-1-2001 and subsequently when application was moved for recall of the witnesses, it was rejected by the impugned order.
2. Heard Sri Sunil Kumar, learned counsel for the revisionist and learned AGA and have gone through the record.
3. The prosecution case is that one Nanak Chand lodged FIR against the revisionist Jawahar and others on 17-11-1995 at 4.00 a.m. containing the fact that his daughter Kumari Durga alias Kumari Anju, aged about 15 years had gone to respond natural call in the morning of 14-11-1995 at 5 a.m. When delay took place and she did not return, he and his family members started to make search for her. It was told by one Padam Singh that Jawahar Singh and Smt. Anokhi, residents of village Bebar were seen going with Kumari Anju in the bus towards Sikandrapur. After the FIR was lodged investigation started. The girl was recovered. After completing investigation, charge-sheet was submitted. Sessions trial proceeded under Sections 363, 366, 376, I.P.C. Charges were framed against the revisionist. Examination-in-chief of PW-1 Smt. Anju (now married) and PW-2 Nank Chand, her father was recorded on 24-1-2001. The learned counsel for the accused moved adjournment application. When he was asked to cross-examine the witness, it was rejected on 24-1-2001. Later on application under Section 311, Cr. P.C. was moved for recall of these witnesses for cross-examination, but it was rejected on 26-3-2001, hence this revision has been preferred.
4. Section 311, Cr. P.C. contemplates that "311. Power to summon material witness, or examine person present.-- Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case."
5. A perusal of this section shows that it is the power or discretion, which is conferred by the statute on a Court to summon a witness if it appears to the Court to be essential to the just decision of the case. It means the Court is not prohibited from summoning any material witness at any stage of the case but it should be satisfaction of the court itself that the evidence of such witness is necessary for just decision of the case. In instant case the learned Sessions Judge was of the view that cross-examination was made by the accused himself and it was exhausting, therefore, the discretion was not exercised under Section 311 of Cr. P.C. and the prayer was rejected. If prosecution would have closed its evidence and the Court would have arrived at the conclusion that examination of some witnesses was necessary, it was open to the Court to summon these witnesses. But when examination-in-chief of this witness was recorded under Section 231(1) of Cr. P.C. the power was not required to be exercised by the Court under Section 311 of Cr. P.C. Thus the application under Section 311, Cr. P.C. was not maintainable but the prayer of the revisionist could be considered under Section 231(2) of Cr. P.C.
6. Section 231(2) of Cr. P.C. contemplates that "231. Evidence for prosecution.--(2) The Judge, may in his discretion, permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination."
7. Thus Section 231(2) of Cr. P.C. confers power on the Sessions Judge to differ cross-examination or if cross-examination of any witness has been done and it is found necessary that such witness should be recalled for further cross-examination, the witness may be summoned.
8. In instant case the contention of the revisionist is that cross-examination of the prosecution witness of fact was made by the accused himself and therefore question relating to contradiction under Section 161, Cr. P.C. in the statement of witnesses made before the Investigating Officer and the learned Sessions Judge, the question relating to site plan, conduct of the girl while visiting in the bus with the accused and other facts could not be made. She could not be confronted in respect of her age also because the accused does not know the significance of the age of the prosecutrix for being a consenting party in leaving the house of her father.
9. A perusal of the impugned order does not show that these witnesses had appeared earlier also and they had to go back without being cross-examined due to the adjournment sought for by the accused. The order dated 26-3-2001 shows that PW-1 Kumari Anju and PW-2 Nanak Chand appeared on the first day and their cross-examination was closed. Even if it be taken that the learned counsel for the accused was not serious in cross-examining these witnesses on 24-1-2003 still to deprive the accused from the right of cross-examination would cause injustice to him. There is nothing on record from which it may be inferred that the cross-examination was avoided again and again and the witnesses had to go back from the Court. In such circumstances it would be in the interest of justice if the prayer for further cross-examination of PW-1 Smt. Anju and PW-2 Nanak Chand is allowed on the condition that the accused will bear the expenses of these witnesses for coming to the Court and going back to their respective residences and the accused is not given the liberty to get the case adjourned if these witnesses appear in the Court. To close cross-examination amounts to decide the case merely on the cross-examination of the accused, who could only ask the questions about the happening and had no legal knowledge and did not know the significance about the conduct and age of the prosecutrix, which can be a material fact for consideration in arriving at a conclusion whether the guilt under abovementioned sections was committed by the revisionist or not. Even if it be taken that the prayer under Section 311, Cr. P.C. is not maintainable, and there is no mention of particular section, which is material. It is the substance of the prayer, which is subject matter of consideration. In such circumstances the prayer does not deserve to be rejected on the ground that application under Section 311, Cr. P.C. is not maintainable. The learned Sessions Judge is still competent to summon the witnesses PW-1 Smt. Anju and PW-2 Nanak Chand for being further cross-examined under Section 231(2) of Cr. P.C. at the cost of the accused and by doing so there will be no injustice to the complainant or prosecution and the accused-revisionist will have full opportunity of participating in the proceeding of the case.
10. In view of above discussion the revision deserves to be allowed.
The revision is allowed and the order dated 26-3-2001 passed by the learned Sessions Judge, Gautam Buddh Nagar, is set aside. The prayer of the revisionist to recall PW-1 Smt. Anju and PW-2 Nanak Chand for further cross-examination is allowed on the condition that the revisionist will bear the expenses of these two witnesses for attending the Court of Sessions for further cross-examination and also on the condition that if these witnesses appear in the Court, the revisionist will not seek adjournment for cross-examination. In case the revisionist again moves application for adjournment of cross-examination in case these witnesses appear in the Court, the prayer made by the revisionist for adjournment may be rejected.