JUDGMENT R.B. Misra, J. 1. Heard Mr. S. Talapatra, learned Senior counsel assisted by Mr. S. Pal and Mr. B. Benerjee, learned Counsel for the Petitioners and Mr. D. Sarkar, learned Public Prosecutor for the Respondent. 2. The present revision petition has been preferred against the order dated 08.08.2006 passed by the learned Additional Sessions Judge, Khowai, West Tripura in S.T. (WT/K) 98 of 2003, to quash and set aside the same and for further direction to the Trial Court to recall all the witnesses for examination and for affording the opportunity of the cross-examination in the interest of justice. 3. It appears that a complaint was filed by one Maniklal Das alleging that some of the applicants/revisionists attacked one Brajendra Kumar Das and caused grievous injuries, consequently, the said Brajendra Kumar Das died. In reference to such incident, criminal case No. 45 of 2003 under Section 148/149/326/427/302/109 IPC was registered, which after renumbering was registered as G.R. 106 of 2003, Charge sheet against the applicants/revisionists was submitted on 31.05.2003. The case was committed to the session Court (of learned Additional Sessions Judge, West Tripura, Khowai). After framing of the charge, the case was posted for recording deposition of the witnesses as cited by the prosecution and for cross-examination. 4. It appears that on 07.08.2006, one of the witnesses was examined and on the prayer of the defence, cross-examination of the P.W. 1 was deferred to 08.08.2006. On 08.08.2006 all the 17 accused persons on bail was present before the Court of the Additional Sessions Judge, West Tripura, Khowai, and the accused/applicants/revisionists have engaged two advocates, namely, Mr. S. Chakraborty, and Mr. J. Bhattacharjee. It appears that Mr. S. Chakraborty was unwell on that day and a medical certificate was placed before the learned Sessions Court. However, in absence of Mr. S. Chakraborty, Mr. J. Bhattacharjee was to conduct the case, but as per oral instructions of the accused/applicants, he was not ready to conduct the cross-examination of the witnesses and was also not aware why Mr. S. Chakraborty, could not come on 08.08.2006, and according to him he was not having records of the case. However, by an application dated 05.08.2006, Mr. J. Bhattacharjee, learned Counsel for the accused/applicants/revisionists herein, prayed for adjournment to cross-examine the witnesses on 08.08.2006 instead of 07.08.2006. S. Chakraborty, could not come on 08.08.2006, and according to him he was not having records of the case. However, by an application dated 05.08.2006, Mr. J. Bhattacharjee, learned Counsel for the accused/applicants/revisionists herein, prayed for adjournment to cross-examine the witnesses on 08.08.2006 instead of 07.08.2006. Therefore, three witnesses of the prosecution were examined on 07.08.2006 and cross-examination was deferred as per the prayer from the accused Petitioners. It also reveals from the impugned order dated 08.08.2006 that on three consecutive days i.e. on 08.06.05, 09.06.05 and 10.06.05, thirteen witnesses were present before the Sessions Court for examination, but the predecessor of the present presiding Judge Sri S.C. Saha, Additional Sessions Judge, Khowai, West Tripura could not examine them as all the accused Petitioners except one remained absent without any step. It is necessary to refer the relevant portion of the impugned order dated 08.08.2006 as below: The case was again fixed from 05.06.2006 to 08.06.06 for examination of 19 number of witnesses. On 05.06.06 a petition was filed by the accused side seeking an adjournment on the plea that this Court in earlier occasion rejected the bail petition and accordingly the accused side was allowed adjournment for hearing on the petition. On those occasion 12 number of witnesses were present. The case was fixed for hearing on the petition on 09.06.06. On that date an adjournment was filed on the ground of illness of Ld. Advocate Mr. Saradindu Chakraborty which was also considered and the case was fixed on 14.06.06 for hearing. On 14.06.06 again an adjournment petition was filed on the ground of illness of Ld. Advocate Mr. Saradindu Chakraborty and that was also considered fixing the case on 23.06.06. On 23.06.06 the petition for hearing was not pressed. Thus, I find that 12 number of witnesses present in the Court could not be examined due to adjournment petition which was ultimate not pressed by the accused side. The case was fixed again for evidence w.e.f 07.08.06 to 11.08.06. On 07.08.06 adjournment to the accused side was also granted for cross-examination on 08.08.06 as per prayer of accused side on the ground that Ld. Advocate Mr. Chakraborty unable to appear for his personal ground. 5. Learned presiding Judge has also noted that besides Mr. S. Chakraborty, another Advocate Mr. On 07.08.06 adjournment to the accused side was also granted for cross-examination on 08.08.06 as per prayer of accused side on the ground that Ld. Advocate Mr. Chakraborty unable to appear for his personal ground. 5. Learned presiding Judge has also noted that besides Mr. S. Chakraborty, another Advocate Mr. J. Bhattacharjee of Khowai Bar was an appointed lawyer for the accused applicants who however has failed to convince learned presiding Judge for not conducting the case and submission of Mr. J. Bhattacharjee, Ld. Counsel that he was appointed for filing Hajira only was not found satisfactory, as according to the learned presiding Judge, the Vakalatnama was accepted by him for conducting the entire case in full and not filing Hazira only. It was also noted by the learned Presiding Judge in his order dated 08.08.06 that Mr. J. Bhattacharjee, learned Counsel was present on 07.08.06 and had participated in examination in chief of the witnesses and was actively involved in the case and on 08.08.06 before the Court; however, the learned Presiding Judge has made a very specific observation which is necessary to quote as under: In view of this entire facts stated above I find that the accused side did not allow my predecessor to record the evidence of witnesses, causing hindrance to this Court in recording evidence on this or that plea. In view of the above hindrances I have no alternative except to record the statements of witnesses. After chief the accused persons are asked to cross-examine the witnesses but they decline. They also decline to cross-examine P.W. 1 who is present today for cross-examination as per their prayer. It is to be noted here that this is a case of March, 2003 and in the mean time 3 years has already gone. 6. The original lower Court record were summoned and after going through the original records, it appears that trial commenced from 15.12.2003 and several dates were fixed in between and the entire order dated 08.08.2006 was dictated in the open Court and thereafter, the case was listed on 09.08.2006, 10.09.2006, 11.08.2006 and 22.08.2006. In the operative part of the order dated 08.08.2006, it was indicated by the presiding Judge that his predecessor was not allowed to record the evidence of the witnesses because of hindrance to the Court. 7. According to Mr. In the operative part of the order dated 08.08.2006, it was indicated by the presiding Judge that his predecessor was not allowed to record the evidence of the witnesses because of hindrance to the Court. 7. According to Mr. S. Talapatra, learned senior Counsel for the applicants/revisionists (i) In the absence of the learned Counsel Mr. S. Chakraborty, as per instruction of the accused/applicants/revisionists, another engaged lawyer Mr. J. Bhattacharjee for them could not make any endeavour for cross-examination of the witnesses in the interest of his clients. However, learned presiding judge was in haste at this stage to close down the cross-examination of P.W. 1 only by mentioning "cross by defence-decline." In such situation, in absence of learned advocate Mr. S. Chakraborty and indicating the unwillingness to conduct the case and cross-examine (by an another associated Ld. lawyer Mr. J. Bhattacharjee), learned Presiding Judge was not to proceed further presuming that the accused/applicants were without pleader. It was necessary on the part of learned presiding judge to appoint an 'Amicus Curiae' or another Counsel for the accused/revisionists and it was in the interest of justice that the defence was allowed to be given full opportunity to examine and cross-examine the witnesses to their full satisfaction. In such circumstances, the order dated 08.08.2006 is to be set aside in exercise of revisional jurisdiction of this Court under Section397 read with Section 401 of Code of Criminal Procedure in addition, giving appropriate directions to learned presiding Judge/Additional Sessions Judge, Khowai, West Tripura to allow the defence to examine and re-cross-examine P.W. 1 to P.W. 12 afresh, (ii) In support of his contention, Mr. Talapatra has referred to an order dated 05.11.2002 passed by this Court (Hon'ble Mr. Justice B.B. Deb, as he then was) in Criminal Revision No. 53 of2002 where while entertaining the cause of defence by way of criminal revision, in the facts and circumstances, when the defence counsel for Subrata Malakar i.e. accused before the Trial Court had retired from engagement, the applicant/revisionist was in custody, then it was indicated that the accused/applicant was not to be undefended and in case of his financial constraint or otherwise, if the accused was not able to engage a lawyer of his/her choice, it was the duty of the Court to appoint an 'Amicus Curiae' to defend the accused, particularly, in a sessions triable case. In my respectful consideration, the order dated 05.11.2002 passed by this Court in Criminal Revision No. 53 of2002 as referred to above is not applicable in the present case as the facts of the accused person/(Sri Subrata Malakar) in that case was different and distinguishable where the engaged Counsel for the accused/Subrata Malakar had already retired and in absence of any advocate the question could not have arisen for allowing the accused languishing in jail and not to allow such accused to engage a lawyer of his choice or appointing an 'Amicus Curiae' whereas, in the present case, two advocates were already engaged and were actively participating in the trial case and in case of non-availability of one learned Advocate Sri S. Chakraborty declining to conduct the case by an another learned Advocate Mr. J. Bhattacharjee, was not justifiable, (iii) Mr. S. Talapatra, learned senior Counsel further submits that in view of Section 303 Code of Criminal Procedure, right of a person against whom proceedings are instituted is to be defended. Section 303 Code of Criminal Procedure is quoted below: 303. Right to person against whom proceedings are instituted to be defended.- Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice. (IV) Mr. Talapatra further submits that in view of Section 304 Code of Criminal Procedure, legal aid at State expense in certain cases may be provided to the accused person. For that purpose, Section304 Code of Criminal Procedure is also quoted: 304. Legal aid to accused at State expense in certain cases.- (1) Where, in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State. However, after going through the above provisions, the protection of 303 and 304 Code of Criminal Procedure shall also not be available to the accused/applicants/revisionists in the present case. 8. From the side of the prosecution, it has been submitted that if the observations of Ld. However, after going through the above provisions, the protection of 303 and 304 Code of Criminal Procedure shall also not be available to the accused/applicants/revisionists in the present case. 8. From the side of the prosecution, it has been submitted that if the observations of Ld. Presiding Judge as indicate in the impugned order dated 8.8.2006 regarding non-cooperation of defence and putting hindrance to the trial Court is not correct, then for that purpose, objection if any was to be preferred or presented before the same learned presiding judge by way of objection or by way of affidavit or by way of petition as happenings in the Court if wrongly recorded in the judgment, it should have been corrected by the same learned Presiding Judge, otherwise the observations of learned Presiding Judge recorded have to be taken as correct. It has been indicated by the prosecution that the defence has never come forward showing willingness for cross-examination of the witnesses afresh by way of any objection or application or petition before the same learned Presiding Judge i.e. the Additional Sessions Judge, Khowai, West Tripura. In reference thereto, Section231 (2) read with Section 311 Code of Criminal Procedure are necessary to be quoted below: Section 231: Evidence for prosecution.- (1) On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution. (2) The Judge may, in his discretion, permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination. Section 311: Power to summon material witness, or examine person present.- Any Court may at any stage of any inquiry, trial or other proceeding under this 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 person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. 9. According to learned Public Prosecutor, preferring present revision petition before this Court for expunging the observations or remarks of learned Presiding Judge regarding putting hindrance and prayer of recording evidence of witnesses and for re-cross examination without preferring application/petition before the Additional Sessions Judge, is not justifiable. 10. 9. According to learned Public Prosecutor, preferring present revision petition before this Court for expunging the observations or remarks of learned Presiding Judge regarding putting hindrance and prayer of recording evidence of witnesses and for re-cross examination without preferring application/petition before the Additional Sessions Judge, is not justifiable. 10. The Hon'ble Supreme Court in (2003) 6 SCC 595 Roop Kumar v. Mohan Thedani has very categorically observed as below: If a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call the attention of the very judges who have made the record. That is the only way to have the record corrected. Otherwise, the matter must necessarily end there and it would not be open to the Appellant to contend before the Supreme Court to the contrary. Such similar observations have also been made subsequently by the Supreme Court in (2003) 6 SCC 573 Central Bank of India v. Vrajlal Kapurchand Gandhi. The relevant observations are quoted as below: Statements of fact as to what transpired at the hearing recorded in the judgment of the Court, are conclusive of the facts so stated and no one can contradict such statements by an affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a judgment. It is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call the attention of the very judges who have made the record. That is the only way to have the record correct. If no such step is taken, the matter must necessarily end there. It is not open to a party to contend before the Supreme Court to the contrary. The Supreme Court cannot launch into an enquiry as to what transpired in the High Court. It is simply not done. Public policy and judicial decorum do not permit it. Matters of judicial record in that sense are unquestionable. However, the Court can pass appropriate orders if a party moves it contending that the order has not correctly reflected happenings in Court. Such above view has also been reiterated by the Hon'ble Supreme Court in (2005) 4 SCC 120 Commissioner of Endowments v. Vittal Rao. 11. Matters of judicial record in that sense are unquestionable. However, the Court can pass appropriate orders if a party moves it contending that the order has not correctly reflected happenings in Court. Such above view has also been reiterated by the Hon'ble Supreme Court in (2005) 4 SCC 120 Commissioner of Endowments v. Vittal Rao. 11. In (2004) 3 SCC 767 K. Anbazhagan v. Superintendent of Police, during trial, defence was endeavouring to recall 76 P.Ws. for cross-examination, where learned Public Prosecutor (PP) appointed by the State Government has neither objected nor given consent to it, in those circumstances, 64 P.Ws. resiled from their previous statement in chief and no attempt was made by the learned Public Prosecutor (PP) to declare them hostile and/or to take any step under Section 154 of the Evidence Act. Perhaps in those facts and circumstances, learned P.P. acted hand in glove with the accused creating a reasonable apprehension of likelihood of failure of justice arising in the mind of public at large and a strong indication was being noticed that process of justice was being subverted. In those circumstances, Hon'ble Supreme Court has observed in reference to Section 311Code of Criminal Procedure recall of witnesses for cross-examination could not be made on the ground that the counsel for the accused had been busy attending some other case against the Respondent when the said witnesses were, first examined, therefore, according to Hon'ble Supreme Court, that reason could hardly be a ground for recall of witnesses. 12. In Manges Kumar v. State of U.P. 54 (2006) ACC 991, Allahabad criminal case relying upon the decision of 52 (2005) ACC 521 (SC) Mishrilal v. State of M.P. Allahabad High Court has observed that in application for recalling of those P.Ws. already fully cross-examined, for further cross-examination and filing affidavit in case subsequent to their cross-objection, for resiling from his previous deposition in a non-compoundable offence, the witnesses should not be recalled for further cross-examination in order to enable them to resile/contradict from their statement. 13. already fully cross-examined, for further cross-examination and filing affidavit in case subsequent to their cross-objection, for resiling from his previous deposition in a non-compoundable offence, the witnesses should not be recalled for further cross-examination in order to enable them to resile/contradict from their statement. 13. In 2002 (1) Judicial Interpretation of Crime (JIC) 81 (All) Yuga Pal v. State of U.P. Allahabad High Court has observed in reference to Section 311 Code of Criminal Procedure that recall of witnesses for further cross-examination in respect of offence under Section 302 IPC, by entering into the compromise by the parties after cross-examination of witnesses, and filing an application for recalling witnesses for further cross-examination with a view to resile/contradict from their earlier statement and turn hostile cannot be permitted. However, the Supreme Court has also occasion to deal such aspect in S.R. Sinha v. Mrinal Kanti 2002 (1) JIC 52 (SC) as well as in S.N. Mahanti v. State of U.P. JT (1993) 3 (SC) 408 . 14. In 2002 (1) JIC 354 (All). Haribabu Singh v. State of U.P. Allahabad High Court has observed in reference to recalling of witnesses that a witness should not be summoned or recalled in a casual manner to suit the convenience of any individual lawyer merely on the ground that the witnesses could not be properly examined or cross-examined earlier due to negligence or carelessness and even in such situation, the inconvenience of recalling of witnesses should be compensated by realistic cost payable to the witnesses. 15. In Kumher Singh v. State of U.P. (51) 2005 ACC 232 . (Allahabad), the High Court of Allahabad in reference to Section 231(2) and Section 311 Code of Criminal Procedure has observed in respect of recalling of prosecution witnesses for further cross-examination when defence had already cross-examined P.Ws. at length, then in application for the purpose, the question to be put to P.Ws. not even formulated, no justification for granting of permission of further cross-examination of P.Ws. 16. The law is well settled about the scope of exercising the revisional power under Section 397 to399 and 401 Code of Criminal Procedure The revisional Court in exercising its power under Section397 and 401 Code of Criminal Procedure cannot upset the finding of fact recorded by lower Court nor can it substitute the finding of facts over the findings recorded by the lower Court. All that the revisionist Court is empowered to do under Section 397 and 401 Code of Criminal Procedure is to see whether any illegality or impropriety has been committed by the lower Court in the impugned order under revision. This view gets support by the different judgments of the Supreme Court as well as High Court. 17. In State of Maharastra v. Jagmohan 50 (2004) ACC 889 (SC) Para- 23 : 2004 Crl. L.J. 4254 State of Maharastra v. Jagmohan Singh Kuldip Singh Anand, relying upon the case of DuliChand v. Delhi Administration. AIR 1975 SC 1960 J, the Supreme Court has held as below: The Revisional Court is empowered to exercise all the powers conferred on the Appellate Court by virtue of the provisions contained in Section 401 Code of Criminal Procedure is provision enabling the High Court to exercise all powers of Appellate Court. If necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or the Sessions Court. Section 397 Code of Criminal Procedure confers power on the High Court or Sessions Court, as the case may be for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as lo the regularity of any proceeding of such Inferior Court. It is for the above purpose, if necessary, the High or Sessions Court can exercise all appellate powers. Section 401 Code of Criminal Procedure conferring powers of Appellate Court on the Revisional Court is with the above limited purpose. The provisions contained in Section395 to Section 401 Code of Criminal Procedure read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power. Such view was also earlier taken in the case of Associated Cement Company Limited v. Keshav Anand 30 (1998) ACC 275 (SC), Smt. Shccla Devi v. Manna Lai (41) 2000 ACC 158 (SC) and Akhlak Ahmed v. Vahid Ali Ansari (24) 1997 ACC 543 (All) . 18. I have heard learned Counsel for the parties and also perused the original records. 18. I have heard learned Counsel for the parties and also perused the original records. I am of the considered view that the applicants/revisionists have not moved any application/petition in reference to Section 231 and 311 Code of Criminal Procedure urging for invoking inherent power of the sessions Court for redressal of their grievances, more so, in respect of further examination or re-cross examination and for obtaining verdict of the concerned learned Session Court and have however approached to this Court directly for expunging the observations of learned Presiding Court made in the impugned order dated 08.08.2006. Undisputedly no attempt was made by way of objection or affidavit or by giving justification before the same learned Presiding Court, therefore, in the facts and circumstances available in the order sheet and records revealing that the hindrance was being felt by the learned Trial Court/Sessions Court in recording the evidences of the witnesses. Therefore, the perception of Hon'ble Judge and observations of Session Judge cannot be cured by this Court. I do not find any material and scope creating doubt about legality, propriety and correctness of the impugned order dated 08.08.2006 which cannot be said to suffer from procedural regularity. Therefore, the impugned order is taken to be correct and in these circumstances, the present criminal revision is devoid of merit and is being dismissed. The lower Court records are relegated back for conducting the trial proceedings. Petition dismissed