S.B. Criminal Misc. Petition No.1932/2007 Smt. Sangeeta Beniwal vs. Firm Ganpati Tractors and Agro Bajaria, Sawaimadhopur Dated : 25.01.2010 HON'BLE MR. MAHESH BHAGWATI,J. Mr. Tarun Jain, for the petitioner. Mr. D.K. Bharadwaj, for the respondent. This order governs the disposal of criminal misc. petition filed under Section 482 of Cr.P.C. whereby the order dated 26th September, 2007 rendered by the Additional Chief Judicial Magistrate, Sawaimadhopur dismissing the application filed under Section 311 of Cr.P.C. has been impugned. 2. Heard learned counsel for the parties and carefully scanned the relevant material available on record including the impugned order dated 26th September, 2007. 3. This Court while adjudicating S.B. Criminal Misc. Petition No. 85/2010 in the case title Mahesh Chand Khandelwal vs. Surendra Kumar Dad observed thus: “A bare perusal of Section 311 of Cr.P.C. makes it clear that the powers u/s 311 of Cr.P.C. have been given to the Court to examine, or re-examine any person as a witness, if that court considers it necessary to do so for the just decision of the case. If the Section 311 of Cr.P.C. is read with Section 165 of Indian Evidence Act, it would be clear that the power under Section 311 of CR.P.C. and Section 165 of Indian Evidence Act are conferred on the Court and not on the parties and therefore, it is the Court alone which can exercise the powers u/s 311 of Cr.P.C, if the Court is of the opinion that it is necessary to do so for the just decision of the case. The examination and re-examination which is contemplated by Section 311 of Cr.P.C and Section 165 of Indian Evidence Act is to be made by the Court and not by the parties. Viewed in this light, if the powers under Section 311 of Cr.P.C. are used by the Court for the purpose of enabling any party to examine or re-examine the witness, it would be impermissible to do so. Of Course, the Court has unfettered powers to examine and re- examine any witness u/s 311 of Cr.P.C at any time. A bare reading of Sub-Section 3 of Section 242 of the Cr.P.C. shows that the Magistrate conducting trial is empowered to defer the cross examination of any prosecution witness or witnesses who have been examined or recall any witness for further cross examination. The powers given by sub Section 3 of Section 242 of Cr.P.C. are judicial powers and must be exercised in a judicial manner. Besides, the provisions contained in sub-Section 3 of Section 242 of Cr.P.C. are in the nature of special provisions, therefore, the general provisions contained in Section 311 of Cr.P.C cannot be invoked by the accused for recalling any witness for cross examination.” 4. Learned counsel for the petitioner while placing reliance on the judgment of Hon'ble Apex Court delivered in the case title of Mohanlal Shamji Soni vs. Unioin of India and Anr. reported in AIR 1991 Supreme Court 1346 canvassed that the power to summon any person as witness or to recall and re-examine him could be exercised at any stage or proceeding by the Court, but this judgment does not assist the petitioner. 5. It has already been held by this Court that the power to summon the witness for the purpose of examination or re-examination, cross- examination or further cross-examination is to be exercised under Section 311 of Cr.P.C. and section 165 of Indian Evidence Act by the Court and not by the parties. Therefore, it is the Court alone which can exercise the powers under Section 311 of Cr.P.C. if the Court is of the opinion that it was necessary to do so for the just decision of the case. Viewed in this light, if the powers under Section 311 of Cr.P.C. are used by the Court for the purpose of enabling any party to examine or re-examine the witness, it would be impermissible to do so. Of course, the Court has unfettered powers to examine and re-examine any witness u/s. 311 of Cr.P.C. at any time. It is open for the parties to move an application under Sub Section 3 of Section 242 of Cr.P.C. for getting the witnesses summoned for the purpose of further cross examination. That is a general provision enabling the Court to summon witness for the purpose of further cross examination but the powers under Section 311 of Cr.P.C. can be exercised by the Court alone and not by the parties. 6. For the reasons stated above, the petition being bereft of merits stands dismissed. (MAHESH BHAGWATI),J. Mak/- 73