IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH: HYDERABAD MONDAY, THE SIXTH (6TH) DAY OF DECEMBER, TWO THOUSAND AND TEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Crl.P.No.6341 of 2010 Between: Yenamandra Venkateswara Sidhanthi … Petitioners And: State of A.P., rep. by Public Prosecutor, High Court of A.P., Hyderabad & 2 others … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY Crl.P.No.6341 of 2010 ORDER: This petition is filed under Section 482 Cr.P.C. assailing the order dated 23.04.2010 in Crl.M.P.No.546 of 2010 in CC No.52 of 2009 on the file of the III Additional Judicial Magistrate of I Class, Kakinada, wherein the said application filed for recall of LWs.2 to 5 for examination, was allowed in part directing recall of LWs.2 to 4 and dismissed in respect of LW.5. 2. Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor for the first respondent-State. Perused the record. 3. The petitioner is the de-facto complainant. The respondents 2 and 3 are facing prosecution in CC No.52 of 2009 for the offences under Sections 196, 197, 198, 212, 465, 466, 467, 468, 469, 470 and 471 read with 34 IPC. During the course of trial, it is stated that, after PW.1 was examined, other witnesses LWs.2 to 5 were not produced by the prosecution and therefore, the prosecution evidence was closed. Subsequently, prosecution filed an application in Crl.M.P.No.546 of 2010 under Section 311 Cr.P.C. for recalling of LWs.2 to 5 for recording their evidence. The learned Magistrate passed impugned order on 23.04.2010, which runs as follows: “Counter not proposed. Heard. In view of the averments in the petition and contentions of learned A.P.P. and defence counsel, this petition is allowed partly to recall LWs.2 to 4 and dismissed with regard to recall LW.5.” 4. A perusal of the above order would discloses no particular reason was mentioned for dismissing the application in respect of LW.5 while allowing the same insofar as LWs.2 to 4 are concerned. Learned counsel for the petitioner would submit that LW.5 is a material witness, being the investigating officer and his evidence has to be necessarily recorded in the interest of justice. Subsequently, another application in Crl.M.P.No.622 of 2010 was filed by the prosecution for recall of LW.5 and by order dated 26.06.2010, the said application was dismissed holding that it amounts to review of the earlier order dated 23.04.2010, which is not permissible under law. 5. Having regard to the fact that LWs.2 to 4 who are directed to summon for recording evidence and LW.5 the Investigating Officer, being a material witness and no specific reasons having been assigned by the learned Magistrate in the impugned order for not recalling LW.5, it is considered in the interest of fair trial and in the interest of justice, the evidence of LW.5-Investigating Officer shall also be placed on record. The impugned order is therefore set aside insofar as rejecting the request for recall of LW.5 and it is directed that LW.5- Investigating Officer also be recalled and his testimony also be placed on record. 6. In the result, the criminal petition is allowed. ___________________ G.V.SEETHAPATHY, J Date: 06.12.2010 bss