The learned counsel for the petitioner submits that the petitioner has already received certified copy of the order from the trial court. This submission is recorded. Thus the second prayer has become infructuous. The petitioner seeks orders on prayer No.I to quash Ext.P1 order, disallowing her application under Section 311 of the Code of Criminal Procedure to re-call some witnesses. The petitioner has been facing prosecution on a serious charge under Section 409 of the Indian Penal Code. The evidence is over in the trial court, and the accused also stands examined under Section 313 of the Code of Criminal Procedure. By way of the defence evidence she made an application to recall PW6 to PW10, who could not be cross examined at the right stage. The learned Magistrate dismissed the said application on 19.3.2014 on the ground that it is a belated application. It is submitted that the witnesses PW6 to PW10 were not in fact cross examined by the defence counsel, and that the accused will be seriously prejudiced if she is not allowed to cross examine the witnesses. When the offence is serious and the trial is also serious, it O.P(Crl) No.280 of 2014 2 would be inappropriate and unjust to deny opportunity of cross examination of all the material witnesses. Even in cases where the witnesses were cross examined at the right stage, the accused can make application for further cross examination by way of defence under Section 243(2) of the Code of Criminal Procedure, if such cross examination is necessary for a just decision. Here it is definite that cross examination of the material witnesses is necessary for a just decision, because those witnesses were not in fact cross examined during trial. This is not a case where the witnesses were cross examined, and the accused made application for further cross examination. I find that the accused can be granted an opportunity to cross examine the witnesses.
In the result, this Original Petition is allowed. The impugned order passed by the court below in Crl.M.P No.8902/2008 on 19.3.2014 is hereby set aside, and the court below is directed to grant an opportunity to the petitioner to cross examine PW6 to PW10.
P.UBAID JUDGE ab