1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 3668/2009 Rafique Sheikh Allabaksh Sheikh & ors. ..vs.. State of Maharashtra --------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders --------------------------------------------------------------------------------------------------------------------- Mr. Shrimali, Advocate for applicants. Mr. Doifode, A.P.P. for State. CORAM:- S. S. SHINDE, J. DATED :- 11 th December, 2009 1. Heard learned counsel for the applicants. Learned counsel for the applicants submitted that the Court below has erroneously rejected the application under Section 311 of the Code of Criminal Procedure fore recalling PW1, PW5, PW7 and PW8. Learned counsel further invited my attention to the grounds in the application and submitted that in the interest of justice, the application, which was filed for recalling the witness should have been allowed. Learned counsel in support of his contention placed reliance on the reported judgment of this Court in the case of Dipak Gangaram Ahirrao ..vs.. State of Maharashtra; 2006-EQ(BOM)-0-732. Therefore, learned counsel would submit that the impugned order may be quashed and set aside. 2 2. On the other hand, learned A.P.P. for State vehemently submitted that no witness can be recalled for cross-examination or proving omissions or contradictions. Therefore, he submitted that this application may be rejected. 3. After hearing learned counsel for the applicants and learned A.P.P. for the State, I am of the considered view that the Court below i.e. 6th Additional Sessions Judge, Nagpur has properly considered the contents of application and prayer therein and in para 7 recorded thus; “In the present case the learned advocate for the accused has thoroughly cross-examined P.W.1 the complainant Abdul Samad, P.W.5 Tulsiram Dambhare, the investigating Officer, P.W.7 Purusshotam Choube and P.W. 8 Dr. Nilesh Tumram. So far as regards omissions, contradictions and improvements are concerned, those have been brought on record in the cross examination of these witnesses. The learned advocate for the accused was given full opportunity to cross-examine these witnesses and he availed the same. it has not been pointed out as to why these witnesses are required to be reexamined for the purpose of just decision of the case. The discretion which has been conferred upon the court under section 311 Cr.P.C. will have to be exercised judiciously. In case the witnesses are allowed to be 3 cross-examined then there will not be prolonged infinitely. It does not therefore appear that it is essential to recall these witnesses for the cross examination for the just decision of the case. The application is, therefore liable to be rejected.” 4. On perusal of para 7 of the order, I am convinced that no case was made out for interference in the present application. That apart, there is no controversy on the point that even the witness can be recalled for cross-examination in an appropriate case. However, in the facts and circumstances of the present case, no case is made out to exercise jurisdiction under Section 482 of the Code of Criminal Procedure. The application is devoid of merits. The same is, therefore, therefore, rejected. Misc. application, if any pending, stands disposed of. JUDGE kahale