S.B. Cr. Misc. Petition No.1004/2010 Salim Khan & Anr. Vs. State of Raj. Dated : 26.05.2010 HON'BLE MR. MAHESH BHAGWATI,J. Mr. Usman Khan, for the petitioners. Mr. GS Rathore, PP, for the State. *** By way of this petition filed u/s 482 of Cr.P.C., the petitioners have implored to set aside the order dated 6th May, 2010 and allow them to complete re- cross examine of the prosecution witnesses No.1-Abdul Rahman and No.6 Gabbar @ Islam afresh. 2. Having considered the submissions made at the bar and carefully perused the relevant material on record including the impugned order, it is noticed that the learned trial Court allowed the prayer of the petitioners to summon the witnesses PW/1 Abdul Rahman, PW/2 Dr. ML Kamat and PW/6 Gabbar @ Islam for the purpose of re- examination. Pursuant to this order Dr. ML Kamat was examined but the petitioners again submitted an application praying that their cross examination should not be limited to certain areas only and they should be allowed to go for a complete re- cross-examination afresh. The learned trial Court having considered the arguments of the learned counsel for the petitioner passed detailed impugned order and allowed them to limit their cross examination to those areas only as prayed for in the application dated 15.10.2009. 3. A perusal of the record suggests that these witnesses had already been subjected to cross examination and the petitioners had availed the opportunity to cross examine them. With the change of an Advocate, prayer was again made to summon these witnesses and permit their cross examination. 4. Having considered the submissions made by the learned counsel for the parties and cautiously perused the contents of application, it is noticed that the prayer of the petitioners to summon the aforesaid witnesses was allowed to the extent as it was prayed for. Thereafter, the learned counsel expressed before the Court that he wanted to re- cross examine these witnesses de novo as the earlier counsel did not conduct the proper cross examination of the witnesses. It is further noticed that the petitioners had clearly indicated in the application as to for what purpose, the witnesses were prayed to have been summoned for re-cross examination but later on they prayed the Court to enlarge the full scope of cross examination of the witnesses. This kind of prayer could not be allowed in the facts and circumstances of the case, because if with the change of Advocate at every stage, the re-cross examination of the witnesses is allowed, the cross examination of the witnesses shall never come to an end and it may amount to clear abuse of the process of law. It is also found that the learned counsel for the petitioners had already indicated his limited scope of re-cross examination and the same was allowed in the interest of justice but the later application whereby the petitioner wanted de novo cross examination of the prosecution witnesses did not seem to be just and proper to the Court and the Court rightly dismissed the application. 5. 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. 6. 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. 7. It is a well settled proposition of law that the powers under Section 482 of Cr.P.C. must be exercised sparingly with circumspection and in the rarest of rare cases. Exercise of inherent power u/s 482 of Cr.P.C. is not the rule but it is an exception. The exception is applied only when it is brought to the notice of the Court that grave miscarriage of justice would be done if the inherent power is not exercised. The power u/s 482 of Cr.P.C is to be exercised to prevent abuse of the process of any Court. It is not a provision permitting any person to abuse the process of law. The petition is totally devoid of any substance and the same deserves to be dismissed. 8. However, since the learned trial Court has already permitted the petitioners to re-examine the aforesaid witnesses. I, in the interest of justice, do not feel inclined to interfere with the impugned order but the petition filed under Section 482 of Cr.P.C. seem to be totally bereft of any merit, which deserves to be dismissed. 9. In view of the above, the misc. petition being bereft of any merit, stands dismissed. (MAHESH BHAGWATI)J. Pcg