JUDGMENT 1. This criminal misc. petition under Section 482 Cr.P.C. has been filed by the accused petitioner on 24.4.2004 against the Order dated 29.3.2004 passed by the learned Additional Sessions Judge, Sangaria, District Sri Ganganagar by which he rejected the application filed under Section 311 Cr.P.C. dated 17.3.2004 for recalling P W5 Krishna Devi, Mother of the deceased, in Sessions Case No.2/2003 for the offences under Sections 498A and 304B I.P.C. 2. It may be stated here that the accused petitioner was facing trial in the said Court for the aforesaid offences and the case was posted for recording the evidence of prosecution on 3.1.2004. On that day, an application was filed on behalf of the accused petitioner that he had left his counsel Shri Hemraj Godara, Advocate and since he wanted to engage a new counsel, therefore, case be adjourned. 3. That despite that application, no order was passed on that application and statement of PW5 Smt.Krishna Devi was recorded. 4. That further case of the petitioner is that on 17.3.2004, the accused petitioner moved an application under Section 311 Cr.P.C.alleging that since on 3.1.2004 he had already moved an application for engaging another counsel, therefore, the proper cross- examination of PW5 Smt.Krishna Devi was not done by his counsel Shri Godara and further submitted that some contradictions which had taken place between her Court statement and statement recorded by Police under Section 161 Cr.P.C., had not been put to PW5 Smt.Krishna Devi when she was cross-examined, therefore, it was essential that PW5 Smt.Krishna Devi be recalled for further cross-examination. 5. That application dated 17.3.2004 was rejected by the learned Additional Sessions Judge, Sangaria through his order dated 29.3.2004 inter alia holding that since even after the application dated 3.1.2004, Shri Godara remained the counsel of the accused petitioner and he conducted the case on behalf of the accused petitioner and he further cross-examined the remaining witnesses and furthermore, thereafter statements of witnesses up to PW12 were recorded in the presence of Shri Godara, therefore, he did not find any justification for recalling P5 Krishna Devi. 6. Aggrieved from the order dated 29.3.2004 passed by the learned Additional Sessions Judge, Sangaria, the present misc.petition has been filed by the accused petitioner. 7. 6. Aggrieved from the order dated 29.3.2004 passed by the learned Additional Sessions Judge, Sangaria, the present misc.petition has been filed by the accused petitioner. 7. That the main case of the petitioner is that since he had already moved an application on 3.1.2004 stating that he did not want to keep Shri Hemraj Godara as his counsel and, therefore, for the purpose of engaging new counsel, time be given and as if for the sake of arguments if the cross-examination of PW5 Smt.Krishna Devi was conducted by Shri Hemraj Godara on 3.1.2004, that could not be said to be a proper cross examination, hence, the impugned order dated 29.3.2004 suffers from basic infirmity and illegality and should be set aside. 8. There is no dispute on the point that on 3.1.2004 an application was filed by the accused petitioner stating that he had left Shri Hemraj Godara as his counsel and wanted to engage a new counsel. From reading of the impugned order dated 29.3.2004, it further appears that no doubt Shri Godara remained the counsel of the accused petitioner on 3.1.2004 and thereafter but another counsel Shri K.D.Tyagi was also engaged by the accused petitioner and he took part in conducting the case of the accused petitioner along with Shri Godara. Thus, it appears that after 3.1.2004 not only Shri Hemraj Godara was the counsel of the accused petitioner but along with him Shri K.D.Tyagi was also engaged by the accused petitioner. Thus, the main case of the accused petitioner that he wanted to engage a new counsel on 3.1.2004 was materialised by the accused petitioner himself after engaging Shri K.D.Tyagi as his new counsel. 9. Since there was an application on 3.1.2004 of the accused petitioner stating that he had left his counsel Shri Godara and wanted to engage a new counsel, therefore, possibility that proper cross-examination of PW5 Smt.Krishna Devi was not done, cannot be ruled out. 10. If the prayer of the accused petitioner for recalling PW5 Smt.Krishna Devi is not accepted in such a serious case, there would always remain an apprehension in the mind of the accused petitioner that he was not given fair opportunity to cross-examine PW5 Krishna Devi on 3.1.2004 and if this apprehension is there, it cannot be said that trial was being conducted fairly so far as the accused petitioner is concerned. To remove this doubt, recalling of PW5 Smt.Krishna Devi as requested by the accused petitioner, for the reasons mentioned above, appears to be just for proper decision of the case. 11. Apart from this, the Court has power to recall any witness at any stage of the trial, if recalling is necessary for just decision of the case, as stated above, recalling of PW5 Smt.Krishna Devi appears to be necessary for fair play and just decision of the case. 12. When this being the position, that some prejudice has been caused to the accused petitioner and for fair play and good sense recalling of PW5 Smt.Krishna Devi appears to be justifiable for just decision of the case and this Misc.petition deserves to be allowed and the impugned order dated 29.3.2004 is liable to be set aside.For the reasons mentioned above, this criminal misc.petition is allowed, impugned order dated 29.3.2004 passed by the learned Additional Sessions Judge, Sangaria, District Sri Ganganagar is quashed and set aside and the application of the accused petitioner dated 17.3.2004 by which prayer was made for recalling PW5 Smt.Krishna Devi for further cross-examination is allowed and the learned trial Court is directed to recall PW5 Smt.Krishna Devi so that counsel for the accused petitioner may further cross-examine her.Petition allowed. *******