The essentiality of evidence for a just decision, the discretion of the court to recall and examine a witness, and the interpretation of Section 311 Cr.P.C. were the central legal points established in the judgment.

1. The present petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") for seeking quashing of the order dated 13.3.2015 (Annexure P3) passed by the learned Judicial Magistrate Ist Class, Jind, whereby the application, filed by the respondent-husband, under Section 311 Cr.P.C., has been allowed.

2. The respondent-wife has filed a petition under Section 125 Cr.P.C. for grant of maintenance against the petitioner-husband. During the pendency of the said petition, she moved an application under Section 311 Cr.P.C. for recalling her in accordance with the provisions Section 126(2) read with Section 274 Cr.P.C. for recording her statement. The respondent in her evidence, recorded by the learned trial Court, has filed her affidavit Ex.CW.1/A. Thereafter, she faced the cross- examination. During the course of the arguments, while relying upon the law laid by this Court in Gurtej Singh v. Balwinder Kaur 2013(5) R.C.R. (Criminal) 814, it was contended that the evidence of the respondent-wife could not have been recorded by way of affidavit as she was not a formal witness and thus, the application under Section 311 Cr.P.C. has been filed on the ground that her re-examination was necessary for just and effective decision of the case.

3. This application was contested by the petitioner-husband on the ground that the objection was raised at the time of cross- examination of the respondent-wife and it was specifically pointed out that her evidence cannot be recorded by way of affidavit in the proceedings under Section 125 Cr.P.C. It was pleaded that the application under section 311 Cr.P.C. was not maintainable. The respondent-wife had herself not deposed in the court and instead of it, she chose to tender her affidavit. Now, it does not lie in her mouth to say that she was competent and able to depose on oath in support of the contents of her petition. She cannot be allowed to fill up the lacuna in the case at the stage when the arguments have already been heard and the case is fixed for final order.

4. The learned Judicial Magistrate, vide impugned order dated 13.3.2015, allowed the application for recalling respondent-wife Dr. Priya for examination subject to payment of Rs. 1,000/- as costs. She was afforded one opportunity to get herself examined on the very next date of hearing.

5. Aggrieved against the aforesaid order, the present petition has been preferred.

6. I have heard learned counsel for the petitioner and perused the case file.

7. Learned counsel for the petitioner-husband contended that the respondent is a well-educated lady. She is a doctor by profession. It was specifically pointed out in her cross-examination that she cannot depose by way of affidavit but even then the mistake was not corrected. Thereafter, the petitioner-husband appeared in the witness box. His evidence was closed and the case was posted for hearing the final arguments. The final arguments were also heard. During the course of final arguments, it was contended by learned counsel for the petitioner- husband that the respondent-wife cannot lead her evidence by way of affidavit as she is not a formal witness. Thereafter, the case was posted for final judgment. During that period, the application, under Section 311 Cr.P.C., has been filed by the respondent-wife.

8. He further contended that the application under Section 311 Cr.P.C. has only been filed to fill up the lacuna in the case by the respondent-wife, which cannot be permitted by the Court. He further contended that the application has been moved at the belated stage when the case was posted for final judgment. It has not been shown that the respondent has exercised her due diligence at the time of evidence. Rather she did not even care for the objection raised by learned counsel for the petitioner-husband. Thus, he pleaded that the impugned order is unsustainable in the eyes of law.

9. I have duly considered the aforesaid conten