ORAL JUDGMENT

1.0 The present petition has been filed by the petitioners-original accused under Section 482 of the Code of Criminal Procedure, 1974 (the Code) seeking quashing and setting aside the order dated 16.05.2016 passed below Exh.48 in Special Case (POSCO) No.45 of 2014 by the learned Special Judge (POSCO) City Civil Court No.2, Ahmedabad.

Rule. Moxa Thakker, learned APP waives service of Rule for the respondent-State.

2.0 The brief facts leading to filing of present petition are as under:-

2.1 An F.I.R. came to be registered by the respondent no.2 herein being the first informant before the Isanpur Police Station on 12.03.2014 being Cr.No.I-46/2014 for the offences punishable under Section 376 of the Indian Penal Code, 1860 (IPC) and Section 4 and 6 of the Protection of Children From Sexual Offences Act, 2012 (POSCO). Thereafter, investigation commenced and charge-sheet came to be submitted by the Investigating Officer before the Special Judge against the present petitioner and Special Case (POSCO) No.45 of 2014 came to be registered.

2.2 Thereafter, the learned Special Judge framed charge against the accused for the offences punishable under Section 376 of the IPC and Sections 4 and 6 of the POSCO vide Exh.2 and the accused pleaded to be innocent and the trial commenced.

3.0 Learned advocate Mr.Tejas Shukla for learned advocate Mr.Vicky Mehta for the petitioner has submitted that the prosecution has already examined 2 to 12 witnesses, and thereafter, tendered a pursis at Exh.43 declaring that they do not want to lead any further evidence. Thereafter, the learned advocate for the petitioner has submitted his written arguments at Exh.44. It is submitted that after the arguments were concluded and the trial was posted for final judgment, prosecution submitted an application Exh.48 under Section 311 of the Code, inter alia, contending that at the time when the incident took place, the statement of the minor girl was recorded under Section 164 of the Code, however, the evidence of the minor girl is material and crucial for the decision of the trial, and therefore, she may be called as witness. Thus, learned advocate for the petitioner has submitted that in order to fill up the lacuna, such an application was made and the learned Civil Judge has committed grave illegality in allowing such application for calling the minor girl as a witness. In support of his submissions, learned advocate for the petitioner has placed reliance on the judgment of the Apex Court in the case of State (NCT of Delhi) Versus Shiv Kumar Yadav and Anr. [(2016) 2 S.C.C. 402] for the proposition of law that under Section 311 of the Code of Criminal Procedure recalling of the witness can only be allowed, if there are tangible reasons to show how fairness of trial suffered without recall.

3.1 In view of the aforesaid submissions, learned advocate for the petitioner has urged that the impugned order is required to be quashed and set aside.

4.0 Ms.Moxa Thakker, learned Additional Public Prosecutor, for the respondent-State has submitted that the application Exh.48 was made for summoning the victim since at the relevant time when the incident occurred, she was minor and 5 years of age and she was unable to give a statement, however, now, since she is fit for giving a statement, an application for summoning her as a minor witness was made. She has submitted that the medical examination also reveals that heinous offence of rape was committed on her. Hence, the impugned order passed by the learned Special Judge (POSCO), Ahmedabad is required to be maintained since as per the provision of the Section 311 of the Code, the Court can summon the witness, if the evidence appears to be essential or is required for arriving at just decision in the case.

5.0 Ms.Panchal, learned advocate for the respondent no.2-original complainant, who is father of the victim, has submitted that the order passed by the Special Judge does not require interference. She has placed reliance on t