IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.2810 of 2008 Manoj Kumar Singh, son of Sri Subedar Singh, resident of Village- Makhdumpur, P.S.Tekari, District-Gaya. ----------------- Petitioner Versus 1. THE STATE OF BIHAR 2. Sakaldip Singh, son of Late Gauri Shankar Singh,resident of Village-Makhdumpur Harhi, P.S. Tekari, District-Gaya ------------------- Opp.Parties. ----------- For the petitioner : Mr. Alok Kumar Sinha, Advocate For the State : Mr.Jharkhandi Upadhaya, A.P.P. _________ O R D E R 3 14-01-2009 Having made two unsuccessful attempts at securing a favourable order from the court below , the petitioner herein, one of the three accused of Sessions Trial no.45 of 2005, arising from Tekari P.S. Case no.135 of 1998, through this application has prayed for the quashing of the order dated 5.12.2007 passed therein by the learned Presiding Judge, Fast Track Court no.IV, Gaya, whereby he has refused the prayer of the petitioner for recall of some of the prosecution witnesses for their further cross examination. It appears from pleadings that out of the eleven witnesses examined by the prosecution P.Ws 1 and 2 could not be cross- examined by the defence and P.W.11 who happens to be the doctor who attended the injured could not be cross-examined in full and their non-examination would cause serious prejudice to the defence case. It appears from the impugned order that a petition had earlier been filed by the petitioner for recall of P.Ws 1 and 2 which was dismissed by the court on 22.6.2005. From the deposition of P.W.1, a photo copy - 2 - whereof has been appended with this application, Annexure-2, it appears that none appeared on behalf of the defence to cross-examine the witness. The same may be the situation with P.W.2. This rejection order does not appear to have been challenged in any superior forum and as such it has become final and cannot be agitated before this Court after a lapse of three years. It further appears that subsequently on 8.10.2007 another petition was filed with a prayer to recall P.Ws.1 and 2 and to the list was added the name of P.W.11, the doctor, who had been examined, cross-examined and discharged as far back as 13.12.2005. No reasons have been assigned as to why P.Ws. 1 and 2 were not cross-examined when the opportunity to cross –examine them was available to the defence. Similarly, the questions sought to be put to P.W.11 on his recall have also not been divulged. It is by now well settled that the questions sought to be put to the witness on his recall must be placed before the court and only on the court being satisfied that answers to such questions were necessary for a just decision in the case could the witness be recalled. The non- explanation of the prolonged delay in filing the second petition for recall of P.W.11 is also a factor which goes against the petitioner. For the reasons stated in the foregoing paragraphs I find no merit in this application which is dismissed. ( Abhijit Sinha, J ) NKS/-