1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. Criminal Application No.1356/2010 ( Prakashsinh Gangaram Marwadi and Gauri Prakashsinh Marwadi .vs. State of Maharashtra, through PSO Sakkardara, P.S. Sakkardara, Nagpur. ) ------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders. and Registrar's orders Mr. A.B. Mirza, Advocate for Petitioners. Mr. N.R. Rode, APP for Respondent. CORAM : P.D. KODE, J. DATED : SEPTEMBER 13, 2010 1. Heard. 2. By the present application, the petitioners/accused facing Sessions Trial No. 201/2008 before the Court of Sessions Judge at Nagpur for commission of offences punishable under Sections 363, 366, 376 read with Section 109/34 of IPC have prayed for quashing and setting aside order dated 2.8.2010 passed by the learned Sessions Judge rejecting the application preferred by the petitioners under Section 311 of Cr.P.C. for recalling of the prosecution witnesses No. PW2 and PW5. 3. The learned counsel for the petitioners urged that after recording deposition of PW5 on 9.7.2010, 2 since it was noticed that certain relevant questions had remained to be put to PW2 and PW5, the petitioners preferred an application for recalling the said witnesses. He urged that the trial Court without taking into consideration the real purpose for which provisions of Section 311 of Cr.P.C. were made, rejected the application preferred by the petitioners. He urged that hence the order rejecting the said application cannot be legally sustained and deserves to be quashed and set aside by giving appropriate direction for deciding the said application in accordance with law. 4. The learned APP opposed the prayer made by contending that the petitioners were given due opportunity to cross-examine the said witnesses sought to be recalled. He urged that the application presented by the petitioners does not reveal the reason because of which the said so called questions had remained to be asked to the said witnesses while cross-examining them. He urged that the petitioners by preferring such application are trying to forestall expeditious disposal of said trial. He urged that there being no merits in the present application, the same should be dismissed. 5. Considering the short controversy involved in the present application, it is wholly unnecessary to recite in details all other facets of the said session trial. The application preferred by the petitioners immediately after deposition of PW5 recorded apparently reveals that by the same the petitioners have alleged that certain questions had remained to be put to the 3 prosecution witnesses. The petitioners have prayed for recalling the said witnesses by exercising the powers under Section 311 of Cr.P.C. 6. The bare perusal of the said provision reveals that in order to decide prayer for exercising such powers, it was necessary for the trial Court to ascertain whether the evidence proposed to be brought on the record by recalling the witnesses was essential for the just decision of the said trial. Now examining the order passed by the trial Court does not reveal that the trial Court has examined the said aspect while deciding the application preferred and has apparently decided the same only after taking into consideration the aspect of the petitioners having cross-examined the relevant witnesses. The order does not whisper anything about the evidence which was proposed to be brought on the record by recalling the said witnesses was essential for just decision of the said case or otherwise. Hence such an order passed cannot be legally sustained and the same will deserve to be quashed and set aside by giving appropriate direction to the trial Court. 7. The order dated 2.8.2010 passed on application dated 12.7.2010 preferred by the petitioners for recalling the witnesses is hereby quashed and set aside and the trial Court is directed to decide the said application in accordance with the provisions of Section 311 of Cr.P.C. 8. Application stands disposed of. 4 9. In view of disposal of Criminal Application No. 1356 of 2010, Criminal Application (APPP) No. 831 of 2010 also stands disposed of. JUDGE halwai