RAGHUVENDRA S.RATHORE, J. - (1.) IN this criminal 'misc. petition, the petitioner has sought to challenge the order dated 24.10.2000 whereby the learned Additional Judicial Magistrate No. 3, Bharatpur had rejected' the application filed by the petitioner under Section 311 Cr.P.C.
(2.) BRIEFLY stated, the facts of the case are that a complaint was lodged on 26.08.1997 by one Smt. Manju in the Court of Judicial Magistrate, Bharatpur which was subsequently forwarded to the Police Station Udyog Nagar, Bharatpur under Section 156(3) Cr.P.C. The said complaint was then registered as F.I.R. No. 180/97 for the offence under Section 498 -A IPC and under Section 4 of the Dowry Prohibition Act. Subsequently, on completion of the investigation and submissions of the challan, the trial proceeded in the Court of AJM No. 3 Bharatpur (Criminal Case No. 151/99). An application then came of be filed by the petitioner under Section 311 Cr.P.C. for recalling of the witnesses Smt. Manju PW/3 and her father Brajvasi PW/1. The reason given for recalling of the said witnesses was that the material questions could not be put in the cross -examination of the said witnesses by the counsel for the petitioner as a result of miscommunication. One of the question which is proposed to be put to the said witnesses is with regard to pregnancy of Smt. Manju in the year 1996, even though she was not living with her husband Prem Babu @ Vinod Kumar. It has been contended by the learned Counsel for the petitioner that the petitioner had earlier filed a Divorce Petition against the complainant Smt. Manju with the averment that his wife is not ready and willing to continue matrimonial relationship with him. It was also averred in the said petition that the complainant Smt. Manju was got married against her will because she was interested in some other person, with whom she was having friendship, prior to the marriage. It was also stated in the petition that the complainant Smt. Manju had left the petitioner since the month of November 1994. Further, it was stated that Smt. Manju gave a birth to a child in the year 1996 without any cohabitation by the petitioner. It is also submitted by the counsel for the petitioner. It is also submitted by the counsel for the petitioner that a similar stand was taken by the petitioner in his reply to the application under Section 125 Cr.P.C. Tiled by the petitioner on 18.11.1999. According to him, the petitioner had instructed his lawyer about the aforesaid material facts but on account of error on his part the said material questions could not be put to the complainant Smt. Manju during the course of her cross -examination. In support of his submissions, the learned Counsel for the petitioner places reliance on the case of Rajendra Prasad v. Narcotic Cell reported in : 1999 SCC (Cri.) 1062 : RLW 1999(2) SC 321
(3.) ON the other hand, the learned Public Prosecutor assisted by the counsel for the complainant Smt. Manju has read before me the statements of Brajvasi PW/1 and that of Smt. Manju PW/3 and tried to canvass that the essence of the proposed question had already been put to the aforesaid witnesses during their cross -examination. Therefore, he has submitted that the application for recalling of the witnesses filed by the petitioner has been rightly dismissed by the learned court below.;