IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.2138 OF 2008. APPLICATION NO.2138 OF 2008. APPLICATION NO.2138 OF 2008. Umesh Balasaheb Kalbhor. ..Applicant. versus The State of Maharashtra. ..Respondent. .... Mr.M.S. Mohite, for the Applicant. Mr. J.P.Yagnik, APP, for Respondent No.1. .... CORAM CORAM CORAM : A.S. OKA, J. : A.S. OKA, J. : A.S. OKA, J. DATE DATE DATE : 11TH JULY,2008. : 11TH JULY,2008. : 11TH JULY,2008. P.C. 1. The submissions of the learned counsel appearing for the parties were heard on the last day. Considering the controversy involved, the application is taken up for final disposal. The applicant is the first accused in Sessions Case No.591/2006. The applicant is facing trial for offence punishable under sections 302, 307 read with section 34 of the Indian Penal Code. 2. An application was filed by the applicant under section 311 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ’the said Code’) praying for recall for PW.4 -Prakash Chabuswar for further cross-examination on the three aspects set out in paragraph no.3 of the application. In the said application, he stated that when the trial was fixed on 28th May 2008, the further evidence of PW.3 was to be recorded. However before completing the evidences of PW.3, the prosecution examined PW.4, Shri Prakash Chabukswar. It is contended that the Advocate for applicant had to cross-examine PW.4. It is stated that certain questions remained to be put to the said witness in the cross-examination. On this grounds, a prayer was made for recalling the PW.4 for further cross-examination. The said application was opposed by the respondent. By order dated 19th June 2008, the learned Additional Sessions Judge 9, Pune, rejected the said application. By this application under section 482 of the said Code, the applicant has impugned the said order. 3. The learned counsel appearing for the applicant criticized the approach of the learned Sessions Judge. He submitted that the learned Judge has not yet properly appreciated the scope of power under section 311 of the said Code. He placed reliance on the decision of a learned Single Judge of this Court, in the case of Dipak Gangaram Ahirrao & Another v/s. the State of Maharashtra (2006 BCI 79). He submitted that the power under section 311 of the said Code can be exercised for recalling a witness whose cross-examination on some points remained to be made due to inadvertence. He submitted that the applicant is facing trial in which an offence under section 302 of the Indian Penal Code is involved and therefore, the learned Sessions Judge ought to have accepted the prayer made by the applicant. 4. The learned APP opposed the application by pointing out that PW.4 was cross-examined by Advocate appearing for the petitioner and therefore, the learned Sessions Judge was justified in rejecting the application. 5. I have given careful consideration to the submissions. I have also perused averments made in the application at Exhibit 80 made by the applicant under section 311 of the said Code. In paragraph 3 of the said application, the applicant has set out the reasons as to why he wants recall of the witness. It is stated that due to oversight, cross-examination was not made on the aspects set out in the paragraph no. 3 of the said application. Whether the applicant could have been permitted to cross-examine the witness on all the aspects as pointed out in paragraph no.3 of the application in another matter. However, when the Advocate for the applicant accused came out with a case that due to oversight, certain questions remained to be asked in the cross-examination, considering the facts of the case, the said application ought to have been allowed by the learned Trial Judge to avoid any prejudice to the applicant accused who is facing a trial for offences under section 302 and 307 of the Indian Penal Code. 6. The learned APP on instructions of Shri Awatade Shankar Vaman, Assistant Police Inspector, Control Room, Pune stated that the next date is 23rd July 2008. On that day, applicant can be permitted to cross-examine PW.4. 7. Hence, application is disposed of by passing the following order :- . (1) The impugned judgment and order dated 19th June 2008 is quashed and set aside. The application at Exhibit 80 is allowed and the PW 4- Prakash is recalled for further cross-examination by the Advocate for the applicant restricted to what is set out in paragraph no.3 of the application at Exhibit 80. . (2) The respondent to keep the PW.4 present on the next date, i.e. on 23rd July 2008. On the said date, the Advocate for the applicant will cross-examine the said witness and no adjournment will be granted to the applicant for that purpose. . (3) In case a witness summons is necessary to be issued to PW.4, the respondent will obtain witness summons from the Sessions Court. . (4) Application is allowed on above terms with no orders as to costs. [ A.S.OKA, J.] A.S.OKA, J.] A.S.OKA, J.]