ORDER

1. This petition under section 482 of Code of Criminal Procedure, 1973 has been filed by the applicants being aggrieved with the order dated 24.8.2022 passed by II Additional Sessions Judge, Rahli, District Sagar (M.P.) in Session Trial No.76 of 2015 (State of M.P. Vs. Raju @ Rajendra & Others) under sections 302, 307, 147, 148 of IPC whereby the application moved by the applicants/accused Raju @ Rajendra and Others under section 311 of Cr.P.C. for recalling Mohd. Shahjad (P.W.- 15) for further cross-examination was rejected by the aforesaid trial Court.

2. Learned counsel for the parties are heard.

3. On perusal of the impugned order, it is revealed that an application under section 311 of Cr.P.C. was moved on behalf of the applicants/accused for recalling Mohd. Shahjad (PW-15) for further cross examination on the ground that some of the clarification could not be taken by the counsel during his evidence/cross-examination on 7.10.2017. The aforesaid application under section 311 of Cr.P.C. was rejected by the learned trial Court vide impugned order dated 24.8.2022.

4. Learned counsel for the applicants submitted that learned trial Court has rejected the application, without applying of judicial mind, only on the grounds; firstly that cross-examination of Mohd. Shahjad (PW-15) has already been done on behalf of the accused/applicants, and secondly; no party can be permitted to fill up the lacuna left in crossexamination of witness by allowing further cross-examination of the aforesaid witness who was examined and cross-examined 5 years ago. Learned counsel for the applicants has further submitted that aforesaid witness Mohd. Shahjad (PW-15) is an important witness, in his crossexamination, which was made by the earlier counsel, some of necessary questions and explanation could not be put/obtained from him. Therefore, it is necessary to recall him for further cross-examination seeking his explanation on certain points.

5. It is submitted by learned counsel for the applicants that at the time of disposal of application under section 311 of Cr.P.C. learned trial Court has not considered the essentiality of further cross-examination of Mohd. Shahjad (PW-15) for just decision of the case. Hence, the impugned order may be set aside and trial Court may be directed to recall witness Mohd. Shahjad (PW-15) for further cross examination.

6. On the other hand, learned counsel for the respondent/State has opposed the prayer made by learned counsel for the applicants and has submitted that in the application under section 311 of Cr.P.C. the applicants have made it clear that some explanations could not be obtained from the witness during his earlier cross-examination. It is also submitted that defence cannot be permitted to fill up the lacuna left in the cross-examination of the witness by recalling the witness for further cross examination. Therefore, he has prayed for dismissal of the petition.

7. I have carefully considered the rival submissions made by the parties and have gone through the impugned order.

8. The nature and scope of the power exercised by the Court under section 311 of Cr.P.C. was elaboratory considered in the case of Raja Ram Prasad v. State of Bihar and another, 2013 (14) SCC 461 and it was held that the power under section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right. There is no doubt in the legal position that Court has to bear in mind the essentiality of evidence for just decision of the case while deciding the application under section 311 of Cr.P.C. as held by the Hon'ble apex Court in catena of judgment and a