J.C.MISHRA, J. - (1.) HEARD learned A.G.A. and learned counsel for the op­posite parties.
(2.) THIS revision is directed against the order dated 5-6-97 passed by 1st Addition­al Sessions Judge, Agra allowing the ap­plication of the accused for recall of the witnesses for cross- examination. It ap­pears that Ram Jati prosecution witness No. 1 was examined on 31-7-91 whereas prosecution witness No. 2 was examined on 20-12-91. On these dates the accused Virendra Singh and Ajit Singh were not personally present. They were granted ex­emption for personal appearance through their counsel. It appears that the prosecution filed some documents. The accused filed an application for further cross-examina­tion of the witnesses in the light of the documentary evidence. The said application was rejected after hearing the parties. The accused acquiesced. After the close of the prosecution evidence the accused examined a defence witness. Thereafter while the argu­ment was at closing stage the accused filed an application for recall of the witnesses in­voking the powers of the Court under Sec­tion 311, Cr. P.C. It was stated that some question regarding possession over the fields and injuries were necessary.
(3.) THE learned Judge allowed the ap­plication on two considerations; firstly it was observed that two accused persons were not present on the date when the said prosecution witnesses were examined and cross-examined. However, learned Judge failed to notice that they were granted exemption through their counsel on their own request. The other two accused were present. It has not been stated that there was any conflict of interest between the two accused who were present and the other two accused whose personal atten­dance was dispensed with. In my opinion, the mere absence (if the accused on the date of the cross-examination was not suf­ficient ground for permitting further cross-examination. Moreover, the prayer for cross-examination was made after a period of about 5-6 years. The learned Judge failed to consider the previous order by which the prayer of the accused in this regard was rejected. In my opinion, the same prayer ought not lo have been con­sidered invoking the powers under Sect ion 311.Cr.PtC.;