IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.34797 of 2010 JAINANDAN KUMAR Versus STATE OF BIHAR ----------- 2/ 1.12.2010 Heard counsel for the parties. The court is generally slow in acceding to the request for setting aside an order, which has refused the prayer for recalling the witnesses for cross-examination. In the present case, the petitioner who is an accused in Nayagaon P.S. Case No. 46 of 2003 (S.T. No. 17 of 2007), had made a prayer before the Additional Sessions Judge – I, Begusarai for recalling P.Ws 1 and 2, namely, Nehru Kumar and Ram Saheli Devi respectively for further cross-examination by filing a petition on 13.5.2010. That petition was dismissed on 10.8.2010, after the same being rejoined by the prosecution, on the grounds that the case was fixed for hearing defence evidence and the prayer for recall has been made very belatedly. The reasons assigned by the court below may appear convincing on the face of it but, one has always to consider that the petition was filed under section 311 of the Code of Criminal Procedure, which vests discretion in a court to recall any witness, who has been examined and discharged, for re-examining the person and that discretion is vested in the court if it appears to it to be essential to the just decision of the case. The petitioner had submitted before the court below, as it appears from the petition 2 filed in the court below and annexed with the present petition, that the petitioner had been handicapped on account of non-supply of certain documents to the counsel for the petitioner and could not cross examine the two witnesses on enmity and land dispute, especially, on the description of the place of occurrence. The court is of the opinion that the principles of fair trial may require that an opportunity be given to the petitioner accused for cross-examining the two prosecution witnesses, referred to above, who have been earlier examined and discharged, for further cross examination only on the ground of enmity generally and land dispute in that context, especially, on the place of occurrence. No further question shall be allowed by the court below on any point except the two on the prosecution witnesses having been produced on two consecutive dates to be fixed by the court below and the cost of appearance of the witnesses shall be borne by the petitioner, which shall be fixed by the court below itself considering the circumstances under which the witnesses have been recalled including the places they shall have to come from to depose in the case. The petition is allowed in the above terms. Anil/ ( Dharnidhar Jha, J.)