1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CR.MISC.PETITION NO.2045/2010 Pawan Naresh & Ors. Vs. State Date of order : 1/11/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Mukesh Sharma for the petitioners. Shri Piyush Kumar, P.P. for the State. ****** The application of the petitioner sfiled u/s.311 for recall of PW-4 Alok Gauttam has been rejected and petitioners have approached this Court challenging the order aforesaid by filing the present misc. petition. Shri Mukesh Sharma, learned counsel for the petitioners has submitted that petitioners came to learn about the communication dated 10.10.06 and 3.11.06 exchanged to the SHO and the Superintendent of Police with regard to exclusion of Kaushal Naresh as accused and that the challan was filed only against the petitioners. On this aspect of the matter, petitioners could not make any cross examination because those letters came to knowledge after the cross examination was made on 18.12.2009, whereas cross examination had taken place on 12.11.09. Learned PP opposed the misc. petition and submitted that there is no relevance of these two letters which were internal communication between the SHO and the S.P. 2 as to on the basis of evidence collected during investigation who should be proceeded against while filing challan. I find substance in what the learned PP is submitting because challan should be filed against whom, depends on the material collected by the investigating agency during investigation. So far as the case against the petitioners is concerned, the same will have to be judged on the basis of evidence against them. If certain other accused has been wrongly excluded and if any evidence against him still survives during trial, it may be relevant to decide whether or not, he should be joined as accused by recourse to Section 319 of Cr.P.C. I see no justification why the interrogation should be carried out again for asking the question as to why the other accused was excluded while filing challan. In any case, the letters pertain to the year 2006 and the statement of prosecution witnesses were recorded much later and the application was moved still thereafter. Knowledge of the petitioner gained under Right to Information Act by itself cannot justify recall of the witnesses. I therefore do not find any merit in this petition, which his accordingly dismissed. (MOHAMMAD RAFIQ), J. RS/-