- (1.) HEARD. Perused the relevant record.
(2.) THIS petition filed under Sec. 482 Cr. P. C. has been directed against the order dated 27. 2. 1992, passed by the learned M. J. M. No. 2, Jodhpur whereby he rejected accused petitioner's application filed under Sec. 311 Cr. P. C. for re-cross examination of PW-12 Bahadur Singh, Investigating Officer, in Criminal Original Case No. 4576/89 (now 744/93) on the ground that the trial of the said case is pending since 6. 4. 77 and that Bahadur Singh has already retired from service. In the said criminal case, PW-11 Bajrang Das was examined on 26. 4. 91, 18. 9. 91, 24. 9. 91, 9. 11. 91 and 20. 1. 92. However, in the meanwhile the statements of PW-12 Bahadur Singh, Investigating Office, was recorded on 6. 8. 91. Bajrang Das was confronted with the portion 'a to B', 'c to D', 'e to F', 'h to I', 'j to K', and 'k to L' of his previous statement recorded under Sec. 161 Cr. P. C. to prove those contradictions/omissions from the Investigating Officer. The accused petitioner filed an application under Sec. 311 Cr. P. C. before the learned trial Magistrate, who dismissed the same. It may be mentioned here that under Sec. 311 Cr. P. C. any Court may, at any stage of an enquiry, trial or other proceedings under the Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness or recall and re-examine any such person, if his evidence appears to it to be essential for the just decision of the case. Therefore, if the evidence of a witness appears to be essential to the just decision of the case then such witness can be recalled and re-examined at any stage of the trial, that is before judgment is pronounced. It is also needless to mention that a witness can be confronted with his police statement recorded under Sec. 161 Cr. P. C. under the contingencies mentioned in Sec. 162 Cr. P. C. In the instant case, PW-11 Bajrang Das, who is a material witness, was examined from 26. 4. 91 to 20/1/92 in five sittings and he resiled or made contradictory statements to his previous statement given by him under Sec. 161 Cr. P. C. For that, he was confronted during cross examination to prove those contradictions/omissions of the police statement recorded u/s. 161 Cr. P. C. The accused petitioner wanted to re-cross examine PW-12 Bahadur Singh, In-vestigating Officer, who had recorded the said statement under Sec. 161 Cr. P. C. Since Bahadur Singh's statement was recorded on 6. 8. 91 when the statement of P. W. 11 Bajrang Das was incomplete. Therefore, in such circumstances, it was necessary for the just decision of the case for the Magistrate to have recalled and re-examined Bahadur Singh. Simply because the Investigating Officer has retired or case is pending since long is not a reasonable, valid and sufficient ground to refuse further examination of the Investigating Officer. In such circum-stances, to my mind, the learned trial Magistrate did not exercise his jurisdiction properly and has ignored the specific provisions of Sec. 311 Cr. P. C. and that to secure the ends of justice, it is necessary to set aside the impugned order. I accordingly allow this petition, set aside the impugned order dt. 27/2/1992 only to the extent whereby accused petitioner's application filed under Sec. 311 Cr. P. C. was rejected and direct the learned trial Magistrate to recall PW 12 Bahadur Singh and to afford him an opportunity to further cross-examine him in respect of PW 11 Bajrang Das's previous statement Ex. D. l recorded under Section 161 Cr. P. C. by the said Investigating Officer. .;