JUDGMENT 1. - The petitioner is aggrieved by the order dated 22.04.2011 passed by Special Judge (Prevention of Women Atrocities & Dowry Cases), Jaipur City, Jaipur. whereby the learned Judge has dismissed the petitioner's application under Section 311 Criminal Procedure Code for recalling certain witnesses and for production of the prosecutrix's clothe and for the production of the F.S.L report before the court. 2. Briefly, the facts of the case are that on 02.09.2009, Sunita Yadav lodged a report at Police Station Murlipura wherein she alleged that her daughter, Poonam Yadav was ravished by the petitioner. On the basis of the said report, a formal F.I.R, F.I.R No.305/ 2009 was chaked out for offences under section 456 and 376 Indian Penal Code Subsequently, after investigation, charge-sheet was submitted against the petitioner. The learned trial Court framed the charges for offences under Section 450, 376(1) Indian Penal Code, and the trial commenced. During the course of the trial, initially the complainant filed an application under Section 231 Criminal Procedure Code praying that the clothes seized during investigation should be produced before the trial Court. Moreover, the complainant prayed that the F.S.I, report should also be produced before the trial Court. However, the said application was subsequently withdrawn by the prosecutrix. Poonam Yadav was examined as PW-1, Sunita Yadav as PW2 and Suresh Yadav as PW-4. The petitioner moved an application under Section 311 Criminal Procedure Code inter-alia praying that the clothes of the prosecutrix. which were recovered by the police and the FSL report thereon should be produced before the trial Court. Moreover, after production of the said article and the document, PW-1 PW-2 and PW-4 should be recalled for further examination. However, vide order dated 22.04.2011, the said application has been dismissed. Hence this petition before this Court. 3. Mr. Ghanshyam Sisodia, the learned counsel for the petitioner has raised the following contentions before this Court. Firstly, that according to the provisions of the Evidence Act, the best evidence has to be produced in order to do complete justice to a case. Relying on the testimony of Poonam Yadav, he has further contended that according to her, her clothes were recovered by the police. Moreover, according to the charge- sheet submitted by the police, it clearly reveals that the clothes were indeed recovered by them. Moreover, the said clothes were sent to the FSL for its examination. Relying on the testimony of Poonam Yadav, he has further contended that according to her, her clothes were recovered by the police. Moreover, according to the charge- sheet submitted by the police, it clearly reveals that the clothes were indeed recovered by them. Moreover, the said clothes were sent to the FSL for its examination. However, neither the clothes, nor the F.S.L report has been submitted before the learned trial Court. Secondly, that the petitioner requires the production of clothes as well as the F.S.L report as his defence is that the incident had never occurred. He further contends that the petitioner is being falsely implicated in a case of rape, whereas according to the petitioner the entire dispute relates to repayment of certain loan amount. Thus, the clothes and the F.S.L report needs to he produced in order to falsify the prosecution case and in order to buttress his innocence. Thirdly, that the right under Section 311, Criminal Procedure Code is as much available to the accused as to the prosecution. Moreover, according to this Court, the power under Section 311 Criminal Procedure Code should be invoked by the trial Court in order to do substantial justice to the accused. In order to buttress this contention, the learned counsel has relied on the case of Trilok Singh v. State of Rajasthan, 2002(1) Criminal Court Cases 569 (Raj.) : 2001(2) RCC 851 , Iddar & Ors. v. Aabida & Anr., 2007(3) Criminal Court Cases 847 (S.C.) : 2007(2) WLC (SC) Crl. 644 , Harish Mourya v. State of Rajasthan 2008(1) WLC (Raj.) 98 and Prem Babu alias Vinod Kumar v. The State of Rajasthan & Anr. 2009(3) WLC (Raj.) 215 . Lastly, the learned counsel has contended that in case these articles were produced, it is imperative that PW-1, PW-2 and PW-4 should be recalled as witnesses under Section 311, Criminal Procedure Code so as to give the accused an opportunity to cross examine them vis-a-vis the recovery and the F.S.L report. 4. Heard the learned counsel and perused the impugned order and considered the case law cited at the Bar. 5. A bare perusal of the testimony of Poonam Yadav (PW-1) clearly does reveal that according to her, "the pink colour trouser and black colour skirt which she was wearing at the time of incident, the said clothes had been handed over to the police". 5. A bare perusal of the testimony of Poonam Yadav (PW-1) clearly does reveal that according to her, "the pink colour trouser and black colour skirt which she was wearing at the time of incident, the said clothes had been handed over to the police". Moreover, she has proven Ex.P-3 and has clearly stated that "in the recovery memo Ex. P-3 her signature is at 'A' to 'B'." Thus, the prosecution cannot deny the fact that it had recovered the clothes worn by the prosecutrix. 6. A perusal of the charge-sheet, however, reveals that F.S.L report has not been submitted as part of the charge-sheet. Therefore, the prosecution is withholding a material document from the purview of the learned trial court. 7. This Court does not dispute the settled position of law that power under Section 311, Criminal Procedure Code is available both to the prosecution as well as to the accused. Moreover, this Court does not dispute the position that the said power can be invoked by the trial Court in order to do complete justice to the case. 8. However, the learned Magistrate has dismissed the application ostensibly on two grounds. Firstly, that the witnesses, who are being recalled at the instance of the petitioner, are unrelated to the F.S.L Report as well as to the recovery of the clothes. Secondly, that the I.O. is yet to be examined as a prosecution witness. The reasons given by the learned Magistrate cannot be faulted for the following reasons. Firstly, Poonam Yadav, the prosecutrix, was produced as PW-l and has been cross-examined on this point by the petitioner's counsel. Secondly, as far as Sunita Yadav (PW-2) and Suresh Yadav (PW-4) are concerned, they are, in fact, unrelated to the FSL Report. Moreover they have no concern with the clothes, which were recovered from the prosecutrix. Hence, recalling PW-2 Sunita Yadav and PW-4 Suresh Yadav would be an exercise in futility. 9. As mentioned above, the I.O. is yet to be examined as a prosecution witness. Therefore, this Court is of the opinion that till the I.O. is examined as a prosecution witness, the application filed by the petitioner, infact, is rather pre-mature. For, obviously, it is for the 1.O. to clarify before the learned trial Court whether the clothes were recovered or not. Moreover, whether the clothes were sent to the F.S.L for its opinion or not. For, obviously, it is for the 1.O. to clarify before the learned trial Court whether the clothes were recovered or not. Moreover, whether the clothes were sent to the F.S.L for its opinion or not. Furthermore, whether the investigating agency has received any F.S.L Report or not. Till these three facts are established by the prosecution, the application moved by the petitioner is, indeed, pre-mature. 10. Thus, this Court does not find any illegality or perversity in the order dated 22nd April, 2011. 11. However, this Court does grant the liberty to the petitioner to move an application under Section 311 Criminal Procedure Code for recalling of any witness, or under any other provision for production of the article as well as for the production of the F.S.L Report after the testimony of the I.O. is recorded by the learned trial court.With these directions, this petition is disposed of. *******