1. Heard.

2. Admit.

3. Mrs. D.B. Patel, learned Additional Public Prosecutor appears for the respondent waiving service. Considering the subject matter of controversy being regarding the part-heard trial before the Court of Session, with the consent of the parties, application is called out for final hearing.

4. Heard.

5. The applicants/accused in Session Trial No.93/2011 of the Court of Session at Yavatmal pray for exercising powers under Section 397 of the Code of Criminal Procedure for examining the legality, propriety and correctness of order dated 23.05.2013 passed allowing the application at Exh.99 made by the respondent for recalling PW3 Amit Varma and PW 10 P.S. I. Aljun Pitale.

6. Mr. Sudhir Malode, learned counsel for the applicants urged that the applicants are facing the said prosecution on the allegation of having committed the offences under Section 307 read with 34 of the Indian Penal Code. He urged that the said application was preferred by the prosecution after the evidence of 15 prosecution witnesses was adduced, the applicants were examined under Section 313 of Cr. P.C. and the arguments were heard. 1t is the grievance of the learned counsel that allowing such an application at such a belated stage is only for the purposes of permitting the prosecution agency to fill up the lacunae occurred in the prosecution case. It is further urged that the trial Court ignored the fact of the application at Exh.79 for similar purpose earlier made by the prosecution was rejected.

7. It is further urged that the Sessions Judge seized with the matter having allowed the application of similar nature in another case gives reasonable apprehension in the minds of the applicants that they would not receive a fair trial. The reliance is also placed upon the decision of this Court in the case of Om prakash Shankarlal Sharma vs. State of Maharashtra reported in 1993 Cri.L.J. 3175 and so also the decision of the Apex Court in the case of Mohd. Iqbal Ahmed .vs. State of Andhra Pradesh reported in (1979) 4 Supreme Court Cases 172. It is contended that the purported exercise of powers under section 311 of the Code of Criminal Procedure being not proper, the order impugned is liable to be quashed and set aside.

8. Mr. D.B. Patel, learned Additional Public Prosecutor on the contrary supported the order impugned and submitted that the trial Court was within its powers to exercise the powers under Section 311 of the Cr.P.C. and to allow the recall not only of the witness sought but so also of one another. The learned A.P.P. contended that the order impugned depicts reasons for exercising of power and as such there being no illegality, impropriety and incorrectness in the order passed, no interference is required with the order passed and application be dismissed.

9. Thoughtful considerations were given to the submissions advanced by both the parties and the order sought to be impugned was carefully considered.

10. Before considering the merits of the matter, it will not be out of place to state that the legal position regarding the exercise of powers under Section 311 of the Cr.P.C. is well settled by plethora of decisions of the Apex Court to the effect that exercise of such a power is warranted only when the Courts finds that the evidence sought to be brought before the Court by recall is essential for just decision of the case.

11. Now examining merits of this case, it can be said that the said prosecution has emerged out of the complaint filed by PW3 with Wadgaon Police Station regarding commission of offences under Section 307 read with 34 of I.P.C. by the applicants. The order impugned reveals that though prosecution examined PW3 at the trial, during his deposition the endorsement made by PW10 investigating officer regarding the registration of the offence upon the said first information/the complaint was not properly proved. It appears that the learned APP has not made effort to prove the same, even while adducing the evidence of inves