JUDGMENT 1. - The instant miscellaneous petition has been filed by the petitioner challenging the order dated 2.7.2011 passed by the Additional Sessions Judge (Special Judge, SC/ST Act Cases), Pratapgarh in Criminal Appeal No. 3/2010, whereby the learned Additional Sessions Judge whilst deciding the appeal filed by the petitioner, has remanded the matter back to the learned trial Court for providing an opportunity of cross-examination of witnesses PW-1 Gajendra Kumar Palavia, PW-2 Smt. Rekha Ranawat and PW-3 Digpal. Singh to the petitioner. 2. Learned counsel for the petitioner submits that these witnesses were directed to be re-summoned during the course of the trial and since the prosecution did not produce the witnesses before the trial Court despite being given opportunity, as such the statements of these witnesses should not have been considered as the accused was not provided an opportunity of cross examining the witnesses. He, thus, submits that the learned appellate Court has committed grave error in remanding the matter back to the trial Court for the purpose of re-opening the proceedings for cross-examination of these witnesses. He, therefore, prays that the order of the learned Appellate Court be set aside and the Appellate Court be directed to decide the appeal on merit. He has placed reliance on the decisions rendered in Jakir Hussain & Ors. v. Shri Gopal Krishan Vyas, 2011 (4) Cri. (Raj.) 1584 and Veer Singh & Ors. v. State of Uttar Pradesh, AIR 1978 SC 79 . 3. Learned Public Prosecutor has opposed the miscellaneous petition. 4. Having considered the arguments advanced at the bar and after going through the material on record, it is apparent that the decisions on which the learned counsel for the petitioner has placed reliance, are distinguishable on the facts of the instant case. The facts of the instant case reveal that three witnesses, viz., PW-1 Gajendra Kumar Palavia, PW-2 Sint. Rekha Ranawat and PW-3 Digpal Singh were produced before the learned trial Court for giving evidence and the petitioner chose not to cross-examine the witnesses because he submitted to the Court that his counsel has withdrawn the Power and accordingly, the right to cross-examine these witnesses was closed by the learned trial Court. Rekha Ranawat and PW-3 Digpal Singh were produced before the learned trial Court for giving evidence and the petitioner chose not to cross-examine the witnesses because he submitted to the Court that his counsel has withdrawn the Power and accordingly, the right to cross-examine these witnesses was closed by the learned trial Court. Thereafter, the accused filed an application under Section 311, Cr.P.C. and the learned trial Court exercised the discretion liberally and accepted the said application by the order dated 30.8.2006 and provided one more opportunity to the petitioner to cross-examine these witnesses. The order-sheet of the trial Court dated 30.8.2006 reads as below: "30-8-2006 A.P.P. mifLFkr gS eqyfte e; vfHkHkk"kd mifLFkr gSA vfHk;qDr dh vksj ls fnukad 21-3-2006 dks izLrqr vkosnd ckcr~ ryc fd;s tkus nLrkost ,oa vfHk;qDr ckyeqdan dh vks ls fnukad 21-3-2006 dks izLrqr vkosnu rgr/kkjk 311 na0iz0la0 ij vkns'k vyx ls fy[kk;s tkdj lquk;s x;sA eqrkchd vkns'k vfHk;qDr dh vksj ls fnukad 21-3-2006 dks izLrqr vkns'k ckcr~ ryc fd;s tkus nLrkostkr~ ,ran }kjk [kkfjt fd;k tkrk gSA ,oe~ vkosnu fnukad 21-3-2006 dks gh izLrqr vkosnd rgr/kkjk 311 na0iz0la0 Lohdkj fd;k tkdj fnukad 21-2-2006 dks eq[; ijh{k.k esa ijhf{kr gq, v0lk0 1 xtsUnz v0lk0 2 Jhefr js[kk o v0lk0 3 fnXikyflag jk.kkor dks izfrijh{k.k ds fy;s vafre ckj dsoy ,d ckj iqu% cqyk;k tkus ds vkns'k fn;s tkrs gSA bu xokgku ds mifLFkr vkus ij vfHk;qDr dh vksj ls ijfLFkfr esa xokgku~ ls izfrijh{k.k iw.kZ fd;k tk;sA fdlh Hkh ifjfLFkfr esa bu xokgku~ ds mifLFkr vkus ij izrhijh{k.k ugha gksus ij xokgku~ dks iqu% ugha cqyk;k tk;sxkA i=koyh esa mDrkuqlkj xokgku~ tfj;s lEeu ryc gksdj i=koyh izfrijh{k.k gsrq fnukad 31-10-2006 dks is'k gksA " 5. Thereafter witness PW-1 Gajendra Kumar, on being re-summoned, was cross-examined on 15.12.2006. The witnesses PW-2 Sint. Rekha Ranawat and PW-3 Digpal Singh, on being re-summoned, appeared before the trial Court on 28.2.2007 but on that day the cross-examination of these witnesses was not conducted by the accused. The order sheet reads that the lawyers had gone on strike. The import of the order dated 30.8.2006 passed by the trial Court on the application under Section 311, Cr.P.C., was that these witnesses were to be cross-examined on the very day when they were present in the Court and no further opportunity was to be provided to the accused. The order sheet reads that the lawyers had gone on strike. The import of the order dated 30.8.2006 passed by the trial Court on the application under Section 311, Cr.P.C., was that these witnesses were to be cross-examined on the very day when they were present in the Court and no further opportunity was to be provided to the accused. The witnesses, as per the order sheet dated 28.2.2007 were present in the Court and the accused did not choose to cross-examine them. 6. Resultantly, this Court is of the opinion that the learned appellate Court has committed grave error in remanding the matter back to the learned trial Court for providing an opportunity of cross-examination to the accused. 7. PW-1 Gajendra Kumar has already been cross-examined by the accused upon his being re-summoned in pursuance to the order dated 30.8.2006. The remaining two witnesses, viz., PW-2 Smt. Rekha Ranawat and PW-3 Digvijay Singh were present in the Court on 28.2.2007 but the accused did not cross-examine them. Thus, the statements of these witnesses have to be read legally in the proceedings because the accused did not cross-examine them despite being provided an opportunity of cross-examining the witnesses on two occasions. Thus, the order of the learned Appellate Judge is factually wrong because the learned Appellate Judge has observed that after the order dated 30.8.2006, the trial Court did not examine as to whether the witnesses were summoned or not. The record of the trial Court reveals that the witnesses were actually re-summoned. Witness PW-1 Gajendra Kumar has already been cross-examined on 15.12.2006 and witnesses PW-2 Rekha Ranawat and PW-3 Digpal Singh were present in the trial Court on 28.2.2007 but the accused did not cross-examine them. 8. Resultantly, the miscellaneous petition succeeds. The order dated 2.7.2011 passed by the learned Additional Sessions Judge (Special Judge, SC/ST Act Cases), Pratapgarh in Criminal Appeal No. 3/2010 is hereby set aside and the matter is directed to be remanded back to the learned Appellate Court for deciding the appeal in accordance with law. The stay petition stands disposed of. The record of the Appellate Court be sent back forthwith.Petition allowed. *******