1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Writ Petition No.120 of 2010 (N.M. Pawar and others v. Suganchand Ratanlal Chopde and another) Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri S.C. Bhalerao, Advocate for Petitioners. Shri Amol Mardikar, Advocate for Respondent No.1. Shri D.P. Thakre, APP for Respondent No.2. Coram : R.M. Borde, J. Dated : 28 th June, 2010 An application came to be tendered before the learned Trial Magistrate in pending complaint on behalf of respondent No.1/original complainant for recalling of PW 2 Vishwas, who was already examined, for the purpose of cross-examination by the complainant. The learned Trial Magistrate, on consideration of the request made by the complainant, proceeded to allow the application and permitted the complainant to cross-examine PW 2 Vishwas and directed issuance of summons to the said witness for the purpose of examination before him. Respondent No.1/original complainant presented a complaint alleging commission of offences punishable under Sections 463 and 466 read with Section 34 of the Indian Penal Code against the petitioners/original accused. The learned Trial Magistrate directed the complainant to lead evidence before framing of the charge. Accordingly, the complainant led evidence. The complainant examined one PW 2 Vishwas to substantiate the case. The petitioners/accused were also permitted to cross-examine 2 the said witness. On the next day of the examination of the witness, an application came to be tendered by the complainant to recall the said witness, who was already examined, for the purpose of cross-examination. It is contended in the application that PW 2 Vishwas has disclosed certain facts in the examination, which are obviously against the interest of the complainant and as such the complainant wishes to put certain questions to the witness in the nature of cross-examination. The said application was opposed by the accused, contending that such a permission cannot be granted to the complainant. It is stated that the said witness has not made any disclosure, which is adverse to the interest of the complainant. It is further contended that the complainant has no right to cross-examine his own witness, whose examination and cross-examination at the instance of the accused is already over. After considering the rival contentions, the learned Trial Magistrate proceeded to allow the application in view of the order passed on 6-4-2009. The order passed by the learned Trial Magistrate was subject-matter of challenge in Criminal Revision No.18 of 2009 presented at the instance of the accused, which came to be heard and disposed of by the learned Additional Sessions Judge, Yavatmal, who was pleased to dismissed the same by his order dated 16-1-2010. The learned Additional Sessions Judge refused to entertain the revision on the ground that the order passed by the learned Trial Magistrate is interlocutory in nature. I have perused the application tendered by the complainant as well as the impugned order passed by the learned Trial Magistrate on 6-4-2009. As per Section 137 of the Indian Evidence Act, the cross-examination/re-examination of the witness can be recorded. The right to cross-examine the witness vests in the adverse party, whereas the re-examination of the witness can be 3 recorded subsequent to the cross-examination by the party, who called him. It is contended by the complainant that the witness is required to be called for re-examination under the provisions of Section 137 of the Indian Evidence Act. A reliance is placed on the judgment of the Apex Court in the matter of Dayabhai Thakkar v. State of Gujarat, reported at AIR 1964 SC 1563. It is also contended that the recall of the witness is permitted by the learned Trial Magistrate under Section 311 of the Code of Criminal Procedure and the discretion exercised by the learned Trial Magistrate need not be interfered by this Court in exercise of extra ordinary jurisdiction under Article 227 of the Constitution of India. Section 311 of the Code of Criminal Procedure vests the Trial Court with the power to 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. In the instant case, the learned Trial Magistrate has exercised his discretion in permitting the complainant to recall the witness. Considering the interlocutory nature of the proceedings before the learned Trial Magistrate, it would not be appropriate for this Court to interfere in the impugned order by exercising extra ordinary jurisdiction of this Court under Article 227 of the Constitution of India. It would be open for the parties to raise all the objections permissible in law at appropriate stage of the proceedings and rejection of this writ petition will not be an impediment in consideration of such objections. With the above observations, the writ petition stands rejected. Judge. pdl.