1. - This criminal misc. petition under section 482 CrPC has been filed by the petitioner against the order dated 01.05.2015 passed by Sessions Judge, District Jodhpur (for short 'the trial court' hereinafter) in Sessions Case No.152/2013, whereby the trial court has allowed the application filed by the prosecution under section 311 CrPC and recalled PW.35 (Nitin Dave) for his reexamination.

2. Brief facts of the case are that the petitioner is facing trial for the offences punishable under sections 342, 354- A, 370(4), 376(2)(f), 376(D), 506, 509, 109, 120-B, 34 IPC and sections 23, 26 of Juvenile Justice (Care and Protection of Children Act, 2000) and sections 5(f) (g), 7, 8 read with section 17 of the Protection of Children from Sexual Offences Act, 2012 before the trial court in sessions case No.152/2013. In the trial against the petitioner, recording of statements of the prosecution witnesses is under progress and on 18.03.2015, examination-in-chief of PW.35 was recorded and he was cross-examined by counsel for the accused-petitioner before the trial court on 19.03.2015. Thereafter, an application was moved on behalf of the prosecution on 17.04.2015 under section 311 CrPC with a prayer that PW.35 be recalled because during the course of his deposition before the trial court on 18.03.2015 and 19.03.2015, he had failed to exhibit matriculation certificate of the prosecutrix, which was collected by him during the course of investigation. It is contended that the said matriculation certificate has been countersigned by the prosecutrix and it is a part of the charge sheet and is a very important document because the date of birth of the prosecutrix is mentioned in the said certificate, however, due to inadvertence's, the said document could not be exhibited and, therefore, PW.35 be recalled. The application filed on behalf of the prosecution under section 311 CrPC was seriously opposed by the counsel for the petitioner while arguing that the prayer of the prosecution to recall PW.35 is nothing but an attempt to fill a lacuna and, therefore, the application is liable to be rejected. It is also argued that PW.35 is not the author of the said document and, therefore, he cannot produce or prove the said document.

3. The trial court after hearing the counsel for the parties has allowed the said application while holding that the document said to be produced by the prosecution by way of recalling PW.35 is a copy of matriculation certificate of the prosecutrix and said to have been collected by PW.35 during the course of investigation. It is further observed by the trial court that as per the prosecution, due to inadvertence, the said document could not be produced and exhibited during the course of deposition of PW.35. The trial court has further held that the petitioner is charged with the offence punishable under the Protection of Children from Sexual Offences Act, 2012 (for short 'the POCSO Act' hereinafter) and in relation to that charge, the date of birth of the prosecutrix on the date of incident is an important point and, therefore, in the interest of justice, PW.35 is necessary to be recalled. Regarding admissibility and proof of the said document, the trial court while relying on the decision of Hon'ble Supreme Court in Bipin Shanti Lal Panchal v. State of Gujarat and Anr., (2001) 3 SCC 1 , has held that mere admission of any document in evidence does not amount to its proof. The trial court has further held that objection regarding the admissibility and the proof of the document sought to be produced by the prosecution by recalling PW.35 can be considered and decided at the time of final hearing of the case.

4. Assailing the validity of the impugned order dated 01.05.2015, Mr Bora, Senior Counsel assisted by Mr Nishant Bora has argued that the trial court has grossly erred in recalling PW.35 as no case for recalling the said witness is made out. It is also argued that with the recalling of PW.35, the trial court has