SUDHIR KUMAR SAXENA, J. - (1.) HEARD learned Counsel for the petitioners and learned AGA. The petitioners through this petition have challenged the order dated 30.11.2011 whereby application for recalling prosecution witnesses Balak Ram and Surendra Pal has been rejected.
(2.) IT appears that the petitioners are accused under section 302 and 201 IPC. On 11.11.2010, prosecution examined Balak Ram and Surendra Pal who had identified the skeleton as well as the clothes belonging to the deceased. IT is mentioned in the order sheet that opportunity for cross-examination has been given but none came to cross- examine, consequently, cross- examination was closed. On 30.11.2011, petitioners/accused moved application for recalling the above witness as for some reason they could not be cross- examined. This application has been rejected by the Trial Court vide order dated 30.11.2011. This very order has been impugned herein. Learned Counsel for the petitioners submits that he was prepared to cross-examine now and one opportunity may be given. In the petition ground taken is that previous Counsel did not cross-examine as such, new Counsel has been engaged.
(3.) IT is necessary to have a look at sections 309 and 311 Cr.P.C. Relevant provisions are quoted below : "309. Power to postpone or adjourn proceedings-In every inquiry or trial the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded: Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing." Fourth proviso to section 309(2) which has been inserted by Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009) has taken care of such situation. The said proviso is reproduced below: "(a) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party; (b) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment; (c) where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross- examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross- examination of the witness, as the case may be.";