IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Revision No. 170 of 2005 Wahid ………..Revisionist Versus State of Uttaranchal ………….Respondent Ms. Pushpa Joshi, Advocate for the revisionist. Sri G.S. Sandhu, learned G.A. for the respondent. Dated: December 2, 2009 Hon’ble Alok Singh, J. (By the Court) Heard Ms. Pushpa Joshi, Advocate for the revisionist. Sri G.S. Sandhu, learned G.A. for the respondent. Revisionist is assailing the order dated 23.08.2005 passed by Additional Sessions Judge/Fast Track Court, Kashipur Distt: U.S. Nagar thereby rejecting the application of the revisionist, moved u/s 311 Cr.P.C. to recall PW2 for further cross examination. Brief facts of the case are that in Session Trial No.2,3,4 and 5 of 2003 State Vs. Wahid & others under section 394, 302 IPC and section 25, 4/25 Arms Act, P.S. Kashipur, the revisionist/accused has moved an application supported by an affidavit for recalling of PW 2 for further cross examination in the light of his alleged statement dated 17.04.2002 allegedly recorded by I.O. under section 161 Cr.P.C. The main ground taken was that statement of PW2 recorded under section 161 Cr.P.C. ON 17.04.2002 was not made the part of case diary intentionally. The prosecution opposed the application on the ground that so called statement under section 161 Cr.P.C. was not recorded by I.O. and is not part of the case diary. Hence, there is no question of confronting the PW2 with the alleged statement. Learned Trial Court has observed that it is not proved on record that alleged statement dated 17.04.2002 was infect recorded by I.O., learned Trial Court has further observed that alleged statement dated 17.04.2002 is not a part of case diary. Trial Court refused to exercise discretion in favour of the accused and rejected the application of the revisionist u/s 311 Cr.P.C. to recall PW2. Ms. Pushpa Joshi, learned counsel for the revisionist argued that by further cross examination of PW2 it can be proved that alleged statement dated 17.04.2002, which was annexed with the affidavit in support of application under section 311 Cr.P.C., was infect recorded by I.O. and he deliberately not made the same part of the case diary. I have considered the arguments advanced by Ms. Pushpa Joshi. In my opinion no permission to cross examination to confront with alleged statement dated 17.04.2002 can be granted unless and until it is proved that alleged statement dated 17.04.2002 was recorded by the I.O. and is part of a case diary. Moreover section 311 Cr.P.C. is in two parts, in the first part, Court has discretion to summon any person as witness, or examine any person in attendance, though not summoned as witness, or recall and re-examine any person already examined. While second part of Section 311 Cr.P.C. is imposing an obligation on the Court to summon and examine or recall and re-examine, if his evidence is essential to the just decision of the case. In the present matter Trial Court, nowhere recorded that in the opinion of the Court further cross examination of PW2 is required for just decision of the case. Hence, present case comes in the Ist part of the Section 311 Cr.P.C. To invoke Ist part of Section 311 Cr.P.C., applicant has to prove why discretionary power should be exercised in his favour. As noticed above, it is not proved on record that alleged statement dated 17.04.2002 was infect recorded by the I.O. PW2 can not say that alleged statement dated 17.04.2002 was recorded by I.O. It is the I.O. who can say as to whether alleged statement dated 17.04.2002 was recorded by him or not. Learned Trial Court rightly refused to exercise its discretion in favour of the revisionist. In view of above, I find no jurisdictional or legal error in the impugned order. Revision is devoid of merit. Hence the revision is dismissed accordingly. (Alok Singh, J.) 02.12.2009 JKJ