ORDER :

1. Challenge in this petition is to the order dated 16.02.2023, passed in Sessions Trial No. 75 of 2021, whereby learned Additional Sessions Judge (F.T.C.), Raigarh dismissed the application under Section 311 of Code of Criminal Procedure filed by petitioner-accused.

2. Learned counsel for petitioner submits that petitioner is facing trial for alleged commission of offence under Section 376 of I.P.C. Prosecutrix was examined before learned trial Court on 21.02.2022 and on that date petitioner was in jail, therefore, proper instructions could not have been given to his counsel. He also contended that as the counsel was not given proper instructions, the counsel who cross-examined prosecutrix could not be able to confront prosecutrix with her statement recorded under Section 161 of Cr.P.C. in appropriate manner. Prosecutrix has executed an affidavit, which is also to be brought on record by confronting her, therefore, recall of prosecutrix for cross-examination is necessary.

3. Learned State counsel opposing the submission of learned counsel for petitioner would submit that according to the order impugned, prosecutrix was examined on 21.02.2022. Recall of witness when the accused has already cross-examined the witness is not permissible, therefore, there is no merit in this petition.

4. I have heard learned counsel for parties and perused the documents placed on record.

5. Perusal of order impugned would show that prosecutrix was cross-examined as (P.W.-1) before learned trial Court on 21.02.2022. Learned trial Court specifically mentioned that question was put to prosecutrix with regard to her statement under Section 161 of Cr.P.C. while she being cross-examined by learned counsel for petitioner-accused. Application under Section 311 of Cr.P.C. is filed only on 28.01.2023 after about more than 11 months. The only reason assigned in the application for recall of witness is that on the said date, accused-petitioner was in jail. The said reason assigned in the application would not be germane for allowing application under Section 311 of Cr.P.C. when prosecutrix was extensively cross-examined by defence counsel as observed by trial Court in impugned order. Copy of deposition sheet of prosecutrix is not filed, hence, this Court accepts the observation of trial Court in impugned order.

6. Last submission of learned counsel for petitioner that prosecutrix has executed an affidavit which is required to be confronted is the document prepared subsequently only on 01.01.2023. The documents got prepared subsequent to the examination and cross-examination of any witness would itself not be a ground to allow the application under Section 311 of Cr.P.C.

7. Section 311 of Cr.P.C. talks about the power of Court to summon material witness or examine any person at any stage of enquiry or recall or re-examine already examined when Court comes to the conclusion that evidence of such person is essential to the just decision of the case.

8. The Hon’ble Supreme Court in case of State of (NCT of Delhi) Vs. Shiv Kumar Yadav & Another, reported in (2016) 2 SCC 402 has observed in para 28 and 29, which are as under :-

“28. It will also be pertinent to mention that power of judicial superintendence under Article 227 of the Constitution and under Section 482 CrPC has to be exercised sparingly when there is patent error or gross injustice in the view taken by a subordinate court. A finding to this effect has to be supported by reasons. In the present case, the High Court has allowed the prayer of the accused, even while finding no error in the view taken by the trial court, merely by saying that exercise of power was required for granting fair and proper opportunity to the accused. No reasons have been recorded in support of this observation. On the contrary, the view taken by the trial court rejecting the stand of the accused has been affirmed. Thus, the conclusion appears to be inconsistent with the reasons in the impugned order.”

29. We may now sum up our