IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No.893 of 2009 Deshpal and others …………Applicants Versus Rati Ram and another ………….Respondents Mr. Rajendra Singh, Advocate for the applicants. Mr. S.S. Adhikari, AGA for the respondent no.2. Dated: November 25, 2009 Hon’ble Alok Singh, J. (By the Court) This petition is filed under section 482 Cr.P.C. assailing the order dated 05.07.2007 passed by learned Judicial Magistrate, Laksar in Criminal Case no.105 of 2005 under Section 420, 467,468, 471 I.P.C. and judgment dated 18.11.2009 passed by learned District & Sessions Judge, Hardwar whereby the Courts below declined to allow petitioner’s application u/s 311 Cr.P.C. to recall PW1 for further cross examination. Brief facts of the case are that one case under section 420, 467,468,471 I.P.C. was pending before the Judicial Magistrate, Laksar in which prosecution witnesses were examined and thereafter on 28.09.2006 statements of accused under section 313 Cr.P.C., were recorded. Thereafter on 18.04.2007 an application under section 311 Cr.P.C. was moved by the petitioner to recall PW1 Rati Ram for further cross examination. Learned Magistrate vide order dated 05.07.2007 rejected the application on the ground that change of advocate is no ground to recall the witness for further cross examination. Feeling aggrieved by the order of Judicial Magistrate rejecting the application, petitioner preferred criminal revision No.312 of 2007 in the Court of District & Sessions Judge, Hardwar. Revision was also dismissed vide impugned order dated 18.11.2009 passed by District & Sessions Judge, Hardwar. Learned Sessions Judge has observed that sufficient reason has not been assigned for recalling the witness for further cross examination. Section 311 Code of Criminal Procedure reads as under :- “311. Power to summon material witness, or examine person present.- Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re- examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.” This section consists of two parts, one giving discretionary power to the Court and other imposing an obligation on it. (A) First part of discretionary powers under which Court may, (i) summon any person as witness, or (ii) examine any person in attendance though not summoned as a witness, or (iii) recall and re-examine any person already examined. (B) Second part which imposes as obligation on the Court to summon and examine, re-examine or recall and re-examine, if his evidence appears to be essential to the just decision of the case. In the present case, prosecution evidence was closed. Thereafter statements of accused were recorded u/s 313 Cr.P.C. on 28.09.2006. Application for recall PW1 for further cross examination was moved by the accused hence present matter will fall under the category of discretion of the Court. Though the section is expressed in the widest possible terms and does not limit the discretion of the Court in any way. The discretionary power under this section should be invoked only for the ends of justice. Moreover, discretionary power has to be exercised judicially for reasons recorded by the Court. In the case in hand both the Courts below refused to exercise discretion in favour of the accused/petitioners for the reasons stated in the impugned judgment. Trial Court no where recorded any satisfaction to recall or re-examine the PW1 for just decision of the case. I am satisfied that learned Sessions Judge and learned Judicial Magistrate committed no jurisdictional error while passing the impugned orders. The petition is devoid of merit. Hence this petition is dismissed accordingly. (Alok Singh, J.) 25.11.2009 JKJ