1. With the consent of learned counsel for the parties, matter is heard finally.

2. Petitioner/complainant has filed this petition under section 482 of CrPC for setting aside order dated 11.2.2011 passed by Special Judge (Dacoity), Gwalior, whereby application filed by respondent No.2 under section 311 of CrPC for recalling witnesses Raju Gupta and Suresh whose statements have been recorded in his absence and for calling Savant Singh as prosecution witness, has been allowed.

3. Facts in nutshell giving rise to this petition are that on the report of petitioner/complainant Crime No. 106/2005 has been registerd against respondent No.2 and others at police Station, Inderganj, Gwalior, under section 302 of IPC and respondent No.2 is facing trial before Special Judge, Gwalior. When charge-sheet was filed, at that time, respondent No.2 was absconding and case was tried against co-accused and respondent No.2 appeared before learned trial Court after wards. When the case was fixed for defence evidence, one application was filed on 3.2.2011 by respondent No.2 before trial Court on the ground that prosecution witnesses Raju Gupta and Suresh have been examined in his absence, hence, they are to be recalled and one witness Savant Singh, who has not been examined by prosecution, is to be examined as a prosecution witness. That application has been allowed by trial Court giving rise to this petition.

4. It is contended by learned counsel on behalf of the petitioner that statements of witnesses Raju Gupta and Suresh have been recorded before trial Court in Spl. Sessions trial No. 57/2005 on 8.2.2006 and respondent No. 2/accused is facing trial since 2006-2007. Application under section 311 of CrPC could have been filed earlier at the time when charge was levelled against him, but no such application has been submitted before 3.2.2011. Respondent No; 2 and other accused are prolonging the trial on various grounds. It is further submitted that witness Raju Gupta has not stated anything against respondent No. 2/accused or any of the co-accused and another witness Suresh has been declared hostile by the prosecution and he has not uttered anything against any accused persons. Hence, no ground is made out for recalling these witnesses. It is further submitted that at the time when respondent No.2 and other co-accused were examined under section 313 of CrPC trial Court has not put a single question concerning statement of these two witnesses, Raju Gupta and Suresh. It is apparent that trial Court has not considered their evidence, therefore, no question has been put at the time of examination of respondent No. 2/accused under section 313 of CrPC. It is further submitted that in the FIR these witnesses Raju Gupta and Suresh as well as Savant Singh have not been named as eye-witnesses of the incident. It is further submitted that Savant Singh whose statement has not been recorded by prosecution and who is given up by prosecution can be examined as defence witness by respondent No. 2/accused. So there is no need to call him as a prosecution witness, as his evidence is not essential for proper disposal of the case. On these grounds, prayed to set aside the order of learned trial Court.

5. Learned Public Prosecutor for respondent No.1/State supported the contentions of learned counsel for the petitioner/complainant and submitted that as the alleged witnesses have not stated anything against respondent No.2/accused, there is no need to recall them.

6. Combating the claim of petitioner, learned counsel for respondent No.2/accused vehemently argued that as per the provisions of section 273 of CrPC, except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused or when his personal attendence is dispensed with, in the presence of his pleader. It is further submitted that under this provision accused is entitled to cross-examine the witness whose statement has been recor