J.C. Gupta, J. - (1.) PARTIES counsel are present and since the relevant material has already been placed on record by the parties with the affidavits, it is not necessary to summon the lower courts record.
(2.) THIS application in revision is directed against the order dated 5.9.1998 passed by Illrd Additional District and Sessions Judge. Sultanpur, in S.T. No. 85 of 1990 under Section 302/396/323/149/ 147/148. I.P.C. State v. Krishna Mohan and Ors. whereby the learned Sessions Judge allowed the application moved on behalf of opposite party No. 2 for recalling P.W. 1 for further cross -examination. The order appears to have been passed by the learned Sessions Judge in exercise of powers under Section 311, Code of Criminal Procedure. The facts relevant for the purpose of this revision in brief are that opposite party No. 2 along with others are facing trial before Illrd Additional Sessions Judge and in the said trial the stage of defence has reached. It further appears that after the statement of D.W. 1 was recorded and the General Diary (Dincharya Bahi of Lekhpal) had been brought on record wherein certain entries are said to have been made by P.W. 1 showing his presence at a place far removed from the place of incident, an application was moved by accused Sheetla Prasad for recalling P.W. 1 for further cross -examination with regard to the entries of the general diary of the Lekhpal. This application was rejected by the learned Sessions Judge by the order dated 21.8.1998 on the ground that the accused persons had sufficient opportunity to cross -examine the witness and that the Court did not think it necessary to recall the said witness for further cross -examination. It further ap>pears that thereafter an application was moved on behalf of another accused -opposite party No. 2 for recalling the said witness stating therein that the accused persons had no knowledge of the aforesaid entries at the time when P.W. 1 was cross -examined and therefore, for the ends of justice it was necessary that the defence be given an opportunity to effectively cross -examine the said witness regarding his presence at the place where he is said to be on duty at the relevant time. This time the learned Magistrate by the impugned order has allowed the application and has recalled P.W. 1 for further cross -examination.
(3.) LEARNED Counsel for the Applicant vehemently argued before this Court that the impugned order amounts to reviewing the earlier order dated 21.8.1998 passed by the Court below which was not permissible in law under the provisions of Section 362 of the Code of Criminal Procedure and in support of his argument he placed reliance on a number of decisions which I will refer in the later part of this judgment.;