JUDGMENT : I. Mahanty, J. - In the present application u/s 482 of the Code of Criminal Procedure, the Petitioner-Syed Nazam Ahmed @ Sayad Najam Ahmed has sought to challenge the order dated 17.7.2008 passed by the learned Special Judge (C.B.I.), Bhubaneswar in T.R. No. 22 of 2002 rejecting a petition filed by the present Petitioner-accused, u/s 243 Code of Criminal Procedure with a prayer to issue process for compelling the attendance of P. Ws. 5, 6 and 8 in the court for cross-examination by the defence. 2. On perusal of the records, it appears that the case was registered before the learned Special Judge (C.B.I.), Bhubaneswar on 26.6.2001 against one Sri Ajay Kumar Behera, Ex-Branch Manager, Allahabad Bank, Temple Marg Branch, Bhubaneswar, as well as, Syed Nazam Ahmed (present Petitioner), proprietor, Zenith Mining Pvt. Ltd., Biju Pattnaik Chhak, Tulsipur, Cuttack and charge-sheet was filed against both the accused persons u/s 120B/420 I.P.C. and Section 13(2) read with Section 13(1)(d) of the P.C. Act, 1988. 3. Mr. Sarangi, learned Counsel appearing for the Petitioner submitted that the impugned order suffers from lack of application of judicial mind in rejecting the Petitioner's application u/s 243 of Code of Criminal Procedure for summoning witnesses. He further submitted that on perusal of the impugned order, it would be clear that the learned Spl. Judge (CBI) lost sight of the appropriate provisions of law i.e. Section 243 Cr.P.C and instead, relied on a judgment rendered in a case arising out of an application u/s 311 of Code of Criminal Procedure He asserted that even though the decision reported in 80 (1995) CLT 410 (Basudev Purohit v. Republic of India and Anr.) was cited on behalf of the accused Petitioner, in support of his application u/s 243 Cr.P.C, the learned Special Judge (CBI) rejected the petition, without even referring to the said decision. He submitted that in view of the decision in the case of Basudev Purohit (supra) since the application was filed u/s 248 Cr.P.C, the Special Judge had "no discretion" to refuse to issue process to compel the attendance of the witnesses sought for by the accused-Petitioner. 4. He submitted that in view of the decision in the case of Basudev Purohit (supra) since the application was filed u/s 248 Cr.P.C, the Special Judge had "no discretion" to refuse to issue process to compel the attendance of the witnesses sought for by the accused-Petitioner. 4. Sri S.K. Padhi, learned Senior Counsel appearing for the C.B.I., on the other hand, submitted that the case records would reveal that substantial opportunity was granted to the accused-Petitioner not only to cross-examine the prosecution witnesses, in the proceeding, in addition to which, the Petitioner had filed a petition on 10.1.2008 seeking to recall P. Ws. 1, 2, 6 and 7, and by order dated 11.1.2008 such petition was allowed in their favour. 5. On 19.2.2008, P. Ws. 1, 2, 6 and 7 were present on recall by defence for further cross-examination and the said witnesses were further cross-examined by defence counsel and were duly discharged. Thereafter, it appears that on 1.7.2008, after the cross-examination of the Investigating Officer (I.O.) was completed and more importantly the accused statements were recorded on 2nd, 8th and 9th of July, 2008. Thereafter, the matter stood adjourned for submission of list of defence witnesses and after, being adjourned from time to time, ultimately at this stage, the accused-Petitioner filed a petition u/s 243 Code of Criminal Procedure for recalling P. Ws. 5, 6 and 8 for further cross-examination and the rejection of which is the subject matter of the present challenge. 6. Sri Padhi strenuously submitted that the application of the Petitioner ought to be rejected at the threshold since the Petitioner has not approached this Hon'ble Court with clean hands. He asserted that the Petitioner in the present application before the High Court has merely stated that the accused was charged under Sections 120B and 420 I.P.C., without in any manner, disclosing the fact that the accused was also charged for offence u/s 13(2) read with Section 13(1)(d) of the P.C. Act, 1988 along with the other co-accused. Learned Counsel submitted that due to the aforesaid "purposeful omission" on the part of the accused Petitioner, an interim order, directing stay of further proceeding in the matter was granted, obviously, this Court being unaware that the accused-Petitioner is also facing trial for charges under the P.C. Act. Learned Counsel submitted that due to the aforesaid "purposeful omission" on the part of the accused Petitioner, an interim order, directing stay of further proceeding in the matter was granted, obviously, this Court being unaware that the accused-Petitioner is also facing trial for charges under the P.C. Act. Sri Padhi, learned Counsel for the C.B.I, further submitted that there has been no misappreciation of fact or law by the learned Special Judge (C.B.I.) in passing the impugned order. The court below was fully aware that the accused Petitioner had filed an application u/s 243 Cr.P.C, but since the guiding principles laid down thereunder being similar to the principles stipulated u/s 311 Cr.P.C, no objection can be validly raised against the learned trial courts' reliance on the judgment of the Hon'ble Supreme Court in the case of Dara Singh v. Republic of India (2007) 26 OCR 124 and a later judgment of the Hon'ble Supreme Court in the case of Nihar Khan v. State of Uttaranchal 2006 (33) OCR SC 499. Learned Counsel asserted that, even though the aforesaid two cases were passed in the context of applications made by the accused-Petitioner therein u/s 311 Cr.P.C, the principles laid down therein clearly apply to an application u/s 243 Code of Criminal Procedure as well. In conclusion, Mr. Padhi, learned Counsel submitted that although the case was registered in the year 2001 and the charge-sheet was filed 7 years ago, under same plea or the other, the accused Petitioner has managed to delay to conclusion of the trial and, therefore, asserted that the present application being devoid of any merit and the same may be dismissed. 7. Having noted the contentions of the learned Counsels for the parties, it became essential to first take note of Section 243 Code of Criminal Procedure which is quoted hereinbelow: 243. Evidence for defence.-(1) The accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record. Evidence for defence.-(1) The accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record. (2) If the accused, after he had entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing. Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice. (3) The Magistrate may, before summoning any witness on an application under Sub-section (2), require that the reasonable expenses incurred by the witness in attending for the purposes of the trial be deposited in Court. 8. Learned Counsel for the Petitioner provided a copy of the petition filed before the Special Judge, C.B.I, (which is the subject matter of challenge herein) and the grounds of his prayer for issue of summons to P. Ws. 5, 6 and 8 cross-examination as noted at paragraph-3 is quoted hereunder for convenience: 3. That, though P. Ws. 5, 6 and 8 have already been cross-examined before entering upon the defence, their further cross-examination in defence is highly necessary for the ends of justice since P.W.5 has stated that the account was opened on the strength of a Power of Attorney by the accused Syed Nazam Ahmed on behalf of Basudev Agarwal though P.W.5 was not in the concerned Bank during the relevant period; P.W.-6 has stated that Nazam Ahmed received a cheque Book by signing in the cheque issuing Register vide Ext.-10/2, though he was not working in the concerned Branch in the relevant time and P.W.8 state that the accused signed in his presence in the Power of Attorney vide Ext-13/2, though in fact he never executed any Power of Attorney in favour of Syed Nazam Ahmed. 9. 9. It is the case of Basudev Purohit v. Republic of India and Anr. 80 (1995) C.L.T. 410, Hon'ble Justice A. Pasayat (His Lordship the then was) while granting liberty to the accused-Petitioner to file a fresh petition indicating the details and the reasons seeking further cross-examination to be filed came to set aside the further direction, contained in the impugned order therein, directing deposit of Rs. 3000.00 towards the expenses of the defence witnesses. It was in the context of challenge to the direction of the trial court "to deposit cost" that the Hon'ble Court proceeded analyzing Section 243 Code of Criminal Procedure In the said judgment, the Court held as follows: The Magistrate has a duty to issue process to compel the attendance of witnesses named by the accused except where the Magistrate considers that the object for asking for such process is to cause vexation, delay or to defeat the ends of justice. The language of this Sub-section is imperative and the Court has no discretion to refuse to issue process to compel the attendance of any witness cited by the accused after he has entered upon his defence, unless it is of the opinion that the application should be refused for any of the reasons which are specified in the section and which it is bound to record. The decisive ground under the section is that before a Magistrate refuses to summon a witness, he should ascertain from the accused briefly the substance of the witness or the point to prove which he is being summoned, and then if he comes to the conclusion that this witness is being summoned for the purpose of vexation or delay or for defeating the ends of justice he is entitled, after giving his grounds in writing, to refuse to issue process. After came to the aforesaid conclusion, the Hon'ble Court quashed the direction pertaining to the deposit of costs and remanded the matter for re-consideration afresh. 10. After came to the aforesaid conclusion, the Hon'ble Court quashed the direction pertaining to the deposit of costs and remanded the matter for re-consideration afresh. 10. The Section 243 Code of Criminal Procedure as noted hereinabove clearly vests in the defence a right to apply to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground of vexation or delay or for defeating the ends of justice but most importantly, in the present case, the accused Petitioner has sought for issue of process for cross-examinations of P. Ws. 5, 6 and 8. In so far as this specific prayer is concerned, Section 243 Code of Criminal Procedure as well as proviso thereto is quoted hereinbelow: Evidence for defence.-(2) If the accused, after he had entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing: Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this Section, unless the Magistrate is satisfied that it is necessary for the ends of justice. In terms of the aforesaid proviso, it is clear that if an accused seeks issue of process to a witness for cross-examination of a person who has already been cross-examined on his behalf or had the opportunity to cross-examining any witness before entering his defence, the attendance of such witness shall not be compelled under this Section, unless the Magistrate is satisfied that it is necessary for the ends of justice. 11. 11. On a bare perusal of the aforesaid provision of law while it is clear that the accused does possess a right u/s 243 Code of Criminal Procedure to seek for issue of summons to defence witnesses, but such a right does not extend to the issue of "summons for an witness who has already been examined" or for whom, an opportunity to cross-examine had been granted. I am of the considered view that the Legislative mandate is clear and the proviso clearly stipulates that when an accused has cross-examined or had the opportunity to cross-examine any witness before entering his defence, the attendance of such an witness, shall not be compelled under the Section unless the Magistrate is satisfied that it is necessary to do so for the "ends of justice". In view of the aforesaid statutory provision, no doubt that the defence has to be afforded full opportunity to lead their defence and for such purpose, all witnesses covered under Sub-section (2) of Section 243 Cr.P.C, an accused has a lawful right to seek the issue of summon and such a prayer could only be refused on the ground that it is made for the purpose of vexation or delay made for defeating ends of justice. But the Code of Criminal Procedure has stipulated a separate/distinct principle for dealing with applications seeking issue of summons to those witnesses who have already been cross-examined or an opportunity of cross-examination had been afforded before entering on the defence of the accused. For such witnesses, it is clear that the Legislature has used "negative language" and has categorically stipulated that such witnesses shall not be compelled to attend unless the Magistrate is satisfied that it is necessary for the "ends of justice". 12. If an evaluation is made between the Sections 243 and 311 Code of Criminal Procedure, whereas Section 311 Code of Criminal Procedure vests authority in the trial Court at any stage of any court trial or the proceeding, to direct any person for re-examination, the court shall issue summons or recall or re-examination of such person, only if his evidence appears to it to be essential to be just decision of the case, the proviso of Section 243 Code of Criminal Procedure prescribes "ends of justice" as the basis on which a Magistrate may direct issue of summons to persons already examined. Section 311 Code of Criminal Procedure uses the words "essential to the just decision of the case." Although the language used in the said provisions are different, the object of both the provisions appear to be the same since the terms "essential to the just decision of the case" and "necessary for the ends of justice" are both to subserve the cause of justice. 13. Therefore, the decision relied upon by the trial court in the case of Dara Singh v. Republic of India 2003 (26) OCR 124 as well as the case of Nihar Khan v. State of Uttaranchal 2006 (33) OCR 499 though passed in the context of an application u/s 311 Code of Criminal Procedure, in my considered view are also fully applicable to applications made u/s 243(2) Code of Criminal Procedure Therefore, I find no justification in the argument advanced by the learned Counsel for the Petitioner that the judgment relied upon by the learned Special Judge in any manner indicated non-application of judicial mind and on the contrary, I am of the considered view that the said judgment fully applies to the facts of the present case. 14. Therefore, the submissions made by the learned Counsel for the Petitioner, as if the judgment in the case of Basudev Purohit (supra) laid down the principles that a Magistrate was duty bound to issue process to compel attendance of the witness named by the accused is subject to the proviso and the said power or right is not an absolute right, for the reasons noted above. 15. On consideration of the facts as noted hereinabove and since the records indicates that P.W.5 was examined on 20.3.2006 and was cross-examined by the accused-Petitioner on 21.3.2006 at substantial length and further since P.W.6 was examined on 18.5.2006 and substantial cross-examined for two days and whereafter, on an application made by the accused-Petitioner, he was again recalled on 19.2.2008 and had also been afforded further opportunity of cross-examination. It also appears that P.W.8 was examined on 1.11.2006 and had been cross-examined at length by the Petitioner on the same day, there appears to be no real justification for recalling the said witnesses and I am in respectful agreement with the views expressed by the learned C.B.I. Judge in the present case. It also appears that P.W.8 was examined on 1.11.2006 and had been cross-examined at length by the Petitioner on the same day, there appears to be no real justification for recalling the said witnesses and I am in respectful agreement with the views expressed by the learned C.B.I. Judge in the present case. The issues noted in paragraph-3 of the petition filed by the accused Petitioner, do not satisfied the requirement of Section 243 Code of Criminal Procedure that it is not necessary for the ends of justice, to issue summons to P. Ws. 5, 6 and 8. Therefore, the rejection of the said petition is wholly justified both in fact as well as in law. 16. Accordingly, the CRLMC stands dismissed.