The court must exercise its discretion under Section 311 Cr.P.C. judiciously and only when it is satisfied that the evidence sought to be led is essential for a just decision of the case.

1. The instant criminal misc. petition under Section 482 Cr.P.C. has been filed by the petitioner against the order dated 11.04.2019 passed by the learned Special Judge, POCSO Act Cases, Jodhpur, in Sessions Case No. 50/2018 whereby the trial Court allowed the application under Section 311 Cr.P.C. for recalling the witness during the course of the trial.

2. Counsel for the petitioner submits that the certificate issued by the Gov. Higher Secondary School has already been marked by PW-12 Manoranjan Gaur and during the course of examination, prosecutrix PW-3 has also stated that her date of birth is 05.05.1997. There is no discrepancy between the certificate and the date of birth mentioned by the prosecutrix and at this belated stage, the application under Section 311 Cr.P.C has been filed for summoning the witness, therefore there is no question of recalling of witness and the order passed by the trial court may be quashed and set aside.

3. Per contra, learned Public Prosecutor opposed the prayer made by the petitioner, however, he does not dispute the above factual position.

4. I have considered the arguments advanced before me and perused the documents on record. The school certificate issued by the Gov. Higher Secondary School has already been marked by PW-12 Manoranjan Gaur and the prosecutrix PW-3 has also mentioned in her statement that her date of birth is 05.05.1997. When the document has already been exhibited and the Principal has already been examined the another Secondary School certificate in which also same date of birth has been mentioned. Therefore, there is no useful purpose in recalling the witness again.

5. Honble Supreme Court in the case of Rajaram Prasad Yadav v. State of Bihar & Anr. reported in AIR 2013 SC 3081 has laid down following principles while dealing with application under Section 311 Cr.P.C:-

"23. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts:

(a) Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case?

(b) The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated.

(c) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person.

(d) The exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.

(e) The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.

(f) The wide discretionary power should be exercised judiciously and not arbitrarily.

(g) The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.

(h) The object of Section 311 Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision.

(i) The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.

(j) Exigency of the situation, fair play and good sense should be the safe guard, while exercisin