IMPORTANT POINT
The court upheld the trial court's rejection of a witness recall application under Section 311, emphasizing the importance of timely filings and the potential prejudice to the prosecution's rights.

JUDGMENT :

1. The present petition is filed for seeking the following reliefs:

“(A)THIS HON'BLE COURT may kindly be pleased to admit and allow this Special Criminal Application;

(B)THIS HON'BLE COURT may be pleased to issue writ of mandamus or any other appropriate writ, order or direction and thereby be pleased to quash and set aside impugned order dated 02.07.2022 passed by learned 2nd Additional Sessions Judge and Special Fast Track Judge for Rape and POCSO Cases, Jamnagar in an application below Exh. 72 in Special Pocso Case No. 11/2019 (ANNEXURE - 'A') and further be pleased to allow application preferred by petitioner below exh.72 in Special Pocso Case No. 11/2019, in the interest of justice;

(C) Pending the admission and final hearing of this petition, this Hon'ble Court may be pleased to stay the further proceedings of Special Pocso Case No. 11/2019 pending before learned 2nd Additional Sessions Judge and Special Fast Track Judge for Rape and POCSO Cases, Jamnagar, in the interest;

(D) THIS HON'BLE COURT may kindly be pleased to grant such other and further relief's as may deemed fit, just and proper in the facts and circumstances of the case, in the interest of justice;”

2. Heard Mr. Jay Thakkar, learned advocate for the petitioner and Mr. Manan Mehta, learned APP for the respondent – State.

3.1 Mr. Jay Thakkar, learned advocate for the petitioner has submitted that the trial court has committed error in passing the impugned order. He has submitted that the present application is filed under Section 311 of the Criminal Procedure Code, 1973 for re-calling the witness, who was earlier examined on 27.08.2027 and thereafter, the application is filed at Exh.72 on 04.10.2021 numbered in Special POCSO Case No.11 of 2019 before the Special POCSO Court, Jamnagar. He has further submitted that the trial court has also committed error in holding that granting of such application will amount to filling in the lacuna as the petitioner has already availed the opportunity to examine the said witness at earlier point of time and after delay of such period, such application is filed. He has further submitted that trial court has also committed error by observing that granting of such application will certainly prejudice the rights of the prosecution to the certain extent and, therefore, he has submitted that such grounds are not in consonance with the law and interference of this Court is required to be called for. He has submitted that though the matter is at the stage of final argument, the Court can consider such application at any stage of trial, more particularly, Section 311 of the Criminal Procedure Code meant for this, if the case is made out.

3.2 In support of his submissions, he has relied on the judgment of the Hon’ble Apex Court in the cases of (i) Varsha Garg vs. The Stage of Madhya Pradesh and Ors. reported in 2022 LiveLaw (SC) 662, (ii) Rajendra Prasad vs. Narcotic Cell reported in (1999) 6 SCC 110 and, therefore, he has submitted that the present petition is required to be allowed.

4. Learned APP Mr. Manan Mehta has strongly opposed the submissions made at the bar by learned advocate for the petitioner and has submitted that merely because the trial is proceeded further and thereafter, with a view to filling the lacuna, the present application is filed and that too after 2 years of the examination of the witness and thereafter, the present petition is filed by challenging the impugned order passed on 02.07.2022, which is presented before this Court on 24.04.2023. Therefore, he has submitted that deliberate attempt has been made to delay the proceeding of trial and, therefore, he submitted that the order passed by the trial court is in accordance with the law and in accordance with the facts of the present case and it is passed after considering the necessary aspects of the matter and, therefore, no interference is required to be called for by this Court.

5.1 I have considered rival submissions made at the bar by the respective