JUDGMENT :

RAKESH KAINTHLA, J.

1. The present petition has been filed under Section 482 of Cr.P.C. against the order dated 25.02.2022 passed by the learned Additional Sessions Judge, Fast Track Special Court (POCSO), Shimla in Criminal Miscellaneous Petition No. 15-S/4 of 2021 in CIS No. 2053/2021, Sessions Trial No. 70-S/7 of 17/21.

2. It has been asserted that the petitioner and proforma respondent are facing trial for the commission of offences punishable under Sections 363, 366 & 376 read with Section 34 of IPC and Section 4 of the Protection of Children from Sexual Offences Act (in short ‘POCSO Act’) before the learned Additional Sessions Judge, Fast Track Court (POCSO) Shimla (in short learned Trial Court). The prosecution filed an application under Section 311 of Cr.P.C. for examining LC Sunita, Constable Amit, Constable Pardeep, HHC Layak Ram (retired), and recalling of two witnesses, namely, Constable Vishal and HC Praveen along with Malkhana Register. The petitioner contested the application by filing a reply. Learned Trial Court allowed the application vide order dated 25.02.2022. Learned Trial Court erred in allowing the application because it violates the concept of fair trial available to the accused person because the recalling and examining of witnesses sought by way of application will seriously prejudice the defence raised by the petitioner. The entire defence including the inherent improbabilities and material contradictions in the case of the prosecution stands exposed. The re-examination of witnesses, namely, Vishal and Praveen shall wipe out the legal benefits available to the accused persons. The prosecution is trying to manufacture evidence against the accused by using unfair means. Constable Vishal and HC-Praveen did not utter a single word regarding the case property. Constable Vishal even stated that he remained associated during the investigation and the memos regarding the seizure of the cardigan and motorcycle were prepared in his presence. HC-Parveen Kumar has only deposed about sending the case property through Constable Pradeep to SFSL, Junga and did not depose anything about the deposit of the sample with him by either LC Sunita or Constable Amit. They could not have been legally allowed to be re-examined when they had already been cross-examined and no re-examination was conducted by the prosecution. Learned Special Judge failed to notice that Constable Vishal was never cited as a witness to prove the receipt of the sample of the child witness. The statement under Section 161 of Cr.P.C. does not mention any such fact. No reasons were assigned for not citing LC-Sunita, Constable Amit, Constable Pradeep and HHC Layak Ram as witnesses. The order does not comply with the requirements of Section 311 of Cr.P.C. hence, it was prayed that the present petition be allowed and the order passed by the learned Special Judge be set aside.

3. The application is opposed by filing a reply and making preliminary submission regarding the lack of maintainability. The contents of the application were denied on merits. It was asserted that a charge sheet was filed against the petitioner and proforma respondent after the completion of the investigation. The case is pending trial before the learned Trial Court. Learned Trial Court passed a well-reasoned order after considering all the facts and evidence placed before him. There is no infirmity in the same; therefore, it was prayed that the present petition be dismissed.

4. I have heard Mr. Ajay Kochhar, learned Senior Counsel assisted by Mr. Anubhav Chopra, learned counsel for the petitioner and Mr. Jitender Sharma, learned Additional Advocate General, for the respondent/State.

5. Mr. Ajay Kochhar, learned Senior Counsel submitted that the learned Special Judge erred in allowing the application. The application does not mention any reason why the witnesses sought to be examined by filing the present application were not examined earlier. The application was filed after th