The main legal point established in the judgment is that the power under Section 311 Cr.P.C. should be exercised judiciously for strong and valid reasons, and that change of counsel cannot be a ground for recalling a witness.

JUDGMENT :

1. Heard learned counsel for the applicant, learned A.G.A. for the State and Sri Ramesh Kumar Singh, Advocate holding brief of Sri Anil Kumar, learned counsel for opposite party No. 2.

2. The present 482 Cr.P.C. application has been filed to quash the order dated 15.05.2023 passed by Special Judge (POCSO Act)/Additional Session Judge, Mirzapur in S.T. No. 18 of 2014 (State Vs. Mustafa), arising out of Case Crime No. 581 of 2013, under Sections-294, 323, 504, 506 I.P.C., Police Station- Kotwali Dehat, District- Mirzapur.

3. Learned counsel for the applicant submitted that during the course of trial, it was found that certain questions are necessary to be asked from P.W.-8(Dr. Afzal Ahmad), therefore, applicant has moved application under Section 311 Cr.P.C to summon P.W.-8(Dr. Afzal Ahmad). It is next submitted that the questions proposed to be asked are very relevant for fair trial and justice to accused. He next submitted that the Apex Court in the matter of P. Sanjeeva Rao vs. The State of A.P.; Criminal Appeal Nos. 874-875 of 2012 (arising out of S.L.P. (Crl.) Nos. 4286-87 of 2011) has taken view that in all eventuality, even at the cost of delay of proceedings, application under section 311 Cr.P.C. has to be allowed to impart complete justice. The trial court, without appreciating the facts as well as considering the law laid down by the Apex Court, has rejected the application under Section 311 Cr.P.C. vide order dated 15.05.2023, which is bad and liable to be set aside.

4. Per contra, learned counsel appearing for opposite party No. 2 submitted that from the perusal of impugned order, it is apparently clear that defense has examined all the witnesses and matter was also listed for final hearing. At this stage, applicant has changed his counsel and now under the advise of a new counsel, applicant has filed application under Section 311 Cr.P.C. raising four questions after two and a half years after closing of cross-examination of P.W.-8 (Dr. Afzal Ahmad). While deciding the application under Section 311 Cr.P.C., learned trial court has considered all aspects and also returned finding upon the questions so raised. He firmly submitted that questions are not relevant and further, change of counsel cannot be ground for recalling the witness, once his testimony has been recorded and cross-examination has been closed.

5. I have considered rival submissions advanced by counsel for parties and perused the records.

6. From the perusal of impugned order, it is undisputed that after change of counsel, application dated 05.04.2023 under Section 311 Cr.P.C. has been filed for recalling the P.W.-8 (Dr. Afzal Ahmad), after around three years from the date of closing of cross-examination for asking four questions, which are being quoted herein-below:-

^^Á'u&Dk Án'kZ d&6 esa vfdar pksV fnukad 14&09&2013 dks le; 8-00 cts lqcg vkuk laHkkfor gS\

Á'u& lk{kh la[;k&8 ls ;g Hkh iwNk tkuk vko';d gS fd pksV dh vof/k dh x.kuk fdl vk/kkj ij fd;k gS\

Á'u&3 D;k ;g pksVsa fnukad 13&09&2013 dks 6-25 cts 'kke vkuk lEHkfor gS\

Á'u&4 VªkesfVd Losfyax ds pksV dh vof/k dh x.kuk dk vk/kkj D;k gS\

7. While deciding the application, learned Judge has given detailed finding observing that ample opportunity was given to the applicant for examination of witness and case was listed for final hearing on 15.03.2023. At this stage, application dated 05.04.2023 under Section 311 Cr.P.C. has been filed by a new counsel, who has filed Vakalatnama only on 15.03.2023 on behalf of applicant.

8. Now, coming to the questions proposed to be asked from P.W.-8 (Dr. Afzal Ahmad). Question Nos. 2 & 4 are purely of academic nature, may be useful for medical student while examining the injury and question Nos. 1 & 3 are also having no relevance for trial as all facts relating to the time of injury is already mentioned in the injury report, which cannot be replied by P.W.-8 (Dr. Afzal Ahmad) at this belated stage. Therefore, all the questions are having no relevance for fair trial a