JUDGMENT 1. - In a criminal case instituted on the complaint filed by on September 18, 1980 by the learned Add) Munsif and Judicial Magistrate No. 2, Dholpur to the effect that Brij Lata, whose name did not appear in the list of the witnesses may be directed to be examined. The objection of the accused petitioners was, that since her name did not appear in the list of witnesses the learned counsel for the accused could not cross-examine the witnesses already examined from the complainant side with reference to Brij Lata, witness now to be examined by the aforesaid order. 2. The learned Magistrate considered that application and passed the order that after the statement of Brij Lata this prayer about recalling the three witnesses, already examined, would be considered and proper order will be passed. On October 13, 1980, the learned Magistrate ordered that the two injured witnesses Ushendra Lata (P.W. 1) and Ram Swaroop (P.W. 2) should be recalled for further cross-examination by the accused. He did not allow the request for recalling Dilip Singh (P.W. 3) also for that purpose. 3. It is grievance to that refusal for recalling Dilip Singh and the order of imposition of costs of Rs. 50/- upon the accused to be paid to the complainant, that this petition u/s 482 Cr. P.C. has been filed in this Court. 4. On February 18, 1982 this Court issued notice to the complainant non-petitioner to show cause as to why this petition be not admitted. Mr. R.P. Goyal put in appearence on behalf of complainant non-petitioner. 5. The learned counsel for the parties submitted that the arguments for the admission would be very much the same as those for the final disposal of the petition and therefore. the matter may be finally disposed of. Hence arguments in detail were heard taking the petition to be admitted. 6. The learned counsel for the petitioners strenuously contended that there was no reason for the learned Magistrate to examine the witness whose name did not appear in the list of witnesses. The argument has no force for the reason that the order was passed on 18-9-80 and no relief was sought against the order that Brij Lata could be examined as fourth witness in the case. That point became final. The argument has no force for the reason that the order was passed on 18-9-80 and no relief was sought against the order that Brij Lata could be examined as fourth witness in the case. That point became final. It is quite evident that what has caused grievance now to the petitioners is not the examination of Brij Lata as fourth witness in the proceedings rather it is the denial for recalling Dilip Singh (P.W. 3) for further cross-examination and the imposition of costs on the accused to be awarded to the complainant. 7. The next contention raised by the learned counsel for the petitioners is that if the Court thought it proper to recall the injured persons there was no reason to deny the opportunity of further cross-examining P.W. 3 Dilip Singh, an independent witness, alleged to have reached the site at the time of the incident. It has also been stressed that, from further cross-examination the accused could have brought it on record from Dilip Singh that Brij Lata was not at all there. 8. Controverting these contentions, Mr R.P. Goyal, learned counsel for the complainant nonpetitioner has submitted that Dilip Singh has nowhere stated about the presence of Brij Lata and therefore,no useful purpose would have been served by calling him for further cross-examination. 9. It is pertinent to note that the learned counsel for the petitioners fairly agrees that there is nothing in the statement of the Dilip Singh (P.W.3) regarding the presence of Brij Lata. The learned Magistrate passing the impugned order has discussed in detail the circumstances which necessitated the recalling of the injured persons for further cross-examination. In my opinion, if a particular witness has not at all stated anything about the presence of Brij Lata. There is no necessity of recalling that witness simply to state in specific words flu, witness was not present at the site. A thing which i already not there, cannot be required to be stated in negative form. Apart from it Sec 311 Cr.P.C. does not give a right to the party concerned to ask the court to proceed in a particular manner. That section only empowers the Court concerned to summon and examine or recall or re-examine any person already examined, if his evidence a appears to it to be essential to the just decision of the case. 10. That section only empowers the Court concerned to summon and examine or recall or re-examine any person already examined, if his evidence a appears to it to be essential to the just decision of the case. 10. In this view of the matter, do not consider any error in the order of the learned Magistrate rejecting the request of the accused-petitioners to recall P.W.3 Dilip Singh also for further cross-examination. 11. Another point for consideration in this petition is, whether the learned Magistrate was justified in imposing the costs of Rs.50/- on the petitioners The witnesses have been recalled u/s 311 Cr P.C. This clearly indicates that the Court, in the given circumstances of the case, found it necessary to give an opportunity to the accused petitioners for further cross-examining those witnesses. If the complainant himself has per mistake not included the name of Brij Lata in the list of the witnesses & sought indulgence of the court for examining her and the Court accepted that prayer in the interest of justice for further cross-examination of the injured persons, there was no fault of the petitioners so as to the saddle them with the costs. 12. In such circumstances, this part of the order does require interference. 13. Consequently,the petition is partly allowed. The prayer regarding the direction to the Court concerned to give an opportunity to the accused-petitioners for further cross-examination of P.W.3 Dilip Singh also, is rejected. The order saddling the petitioners with costs to be awarded to the complainant, is set aside.Petition party allowed. *******