ORDER : 1. Challenge in this petition is to the order dated 16.02.2023, passed in Sessions Trial No. 75 of 2021, whereby learned Additional Sessions Judge (F.T.C.), Raigarh dismissed the application under Section 311 of Code of Criminal Procedure filed by petitioner-accused. 2. Learned counsel for petitioner submits that petitioner is facing trial for alleged commission of offence under Section 376 of I.P.C. Prosecutrix was examined before learned trial Court on 21.02.2022 and on that date petitioner was in jail, therefore, proper instructions could not have been given to his counsel. He also contended that as the counsel was not given proper instructions, the counsel who cross-examined prosecutrix could not be able to confront prosecutrix with her statement recorded under Section 161 of Cr.P.C. in appropriate manner. Prosecutrix has executed an affidavit, which is also to be brought on record by confronting her, therefore, recall of prosecutrix for cross-examination is necessary. 3. Learned State counsel opposing the submission of learned counsel for petitioner would submit that according to the order impugned, prosecutrix was examined on 21.02.2022. Recall of witness when the accused has already cross-examined the witness is not permissible, therefore, there is no merit in this petition. 4. I have heard learned counsel for parties and perused the documents placed on record. 5. Perusal of order impugned would show that prosecutrix was cross-examined as (P.W.-1) before learned trial Court on 21.02.2022. Learned trial Court specifically mentioned that question was put to prosecutrix with regard to her statement under Section 161 of Cr.P.C. while she being cross-examined by learned counsel for petitioner-accused. Application under Section 311 of Cr.P.C. is filed only on 28.01.2023 after about more than 11 months. The only reason assigned in the application for recall of witness is that on the said date, accused-petitioner was in jail. The said reason assigned in the application would not be germane for allowing application under Section 311 of Cr.P.C. when prosecutrix was extensively cross-examined by defence counsel as observed by trial Court in impugned order. Copy of deposition sheet of prosecutrix is not filed, hence, this Court accepts the observation of trial Court in impugned order. 6. Last submission of learned counsel for petitioner that prosecutrix has executed an affidavit which is required to be confronted is the document prepared subsequently only on 01.01.2023. Copy of deposition sheet of prosecutrix is not filed, hence, this Court accepts the observation of trial Court in impugned order. 6. Last submission of learned counsel for petitioner that prosecutrix has executed an affidavit which is required to be confronted is the document prepared subsequently only on 01.01.2023. The documents got prepared subsequent to the examination and cross-examination of any witness would itself not be a ground to allow the application under Section 311 of Cr.P.C. 7. Section 311 of Cr.P.C. talks about the power of Court to summon material witness or examine any person at any stage of enquiry or recall or re-examine already examined when Court comes to the conclusion that evidence of such person is essential to the just decision of the case. 8. The Hon’ble Supreme Court in case of State of (NCT of Delhi) Vs. Shiv Kumar Yadav & Another, reported in (2016) 2 SCC 402 has observed in para 28 and 29, which are as under :- “28. It will also be pertinent to mention that power of judicial superintendence under Article 227 of the Constitution and under Section 482 CrPC has to be exercised sparingly when there is patent error or gross injustice in the view taken by a subordinate court. A finding to this effect has to be supported by reasons. In the present case, the High Court has allowed the prayer of the accused, even while finding no error in the view taken by the trial court, merely by saying that exercise of power was required for granting fair and proper opportunity to the accused. No reasons have been recorded in support of this observation. On the contrary, the view taken by the trial court rejecting the stand of the accused has been affirmed. Thus, the conclusion appears to be inconsistent with the reasons in the impugned order.” 29. We may now sum up our reasons for disapproving the view of the High Court in the present case :- (i) The trial court and the High Court held that the accused had appointed counsel of his choice. He was facing trial in other cases also. The earlier counsel were given due opportunity and had duly conducted cross examination. We may now sum up our reasons for disapproving the view of the High Court in the present case :- (i) The trial court and the High Court held that the accused had appointed counsel of his choice. He was facing trial in other cases also. The earlier counsel were given due opportunity and had duly conducted cross examination. They were under no handicap; (ii) No finding could be recorded that the counsel appointed by the accused were incompetent particularly at the back of such counsel; (iii) Expeditious trial in a heinous offence as is alleged in the present case is in the interests of justice; (iv) The trial court as well as the High Court rejected the reasons for recall of the witnesses; (v) The Court has to keep in mind not only the need for giving fair opportunity to the accused but also the need for ensuring that the victim of the crime is not unduly harassed; (vi) Mere fact that the accused was in custody and that he will suffer by the delay could be no consideration for allowing recall of witnesses, particularly at the fag end of the trial; (vii) Mere change of counsel cannot be ground to recall the witnesses; (viii) There is no basis for holding that any prejudice will be caused to the accused unless the witnesses are recalled; (ix) The High Court has not rejected the reasons given by the trial court nor given any justification for permitting recall of the witnesses except for making general observations that recall was necessary for ensuring fair trial. This observation is contrary to the reasoning of the High Court in dealing with the grounds for recall i.e. denial of fair opportunity on account of incompetence of earlier counsel or on account of expeditious proceedings. (x) There is neither any patent error in the approach adopted by the trial court rejecting the prayer for recall nor any clear injustice if such prayer is not granted. 9. Hon’ble Supreme Court in State of Haryana Vs. Ram Mehar & Ors., reported in (2016) 8 SCC 762 , has observed in para No. 37, 38 & 39, which are as under :- 37. The heart of the matter is whether the reasons ascribed by the High Court are germane for exercise of power under Section 311 CrPC. 9. Hon’ble Supreme Court in State of Haryana Vs. Ram Mehar & Ors., reported in (2016) 8 SCC 762 , has observed in para No. 37, 38 & 39, which are as under :- 37. The heart of the matter is whether the reasons ascribed by the High Court are germane for exercise of power under Section 311 CrPC. The criminal trial is required to proceed in accordance with Section 309 of the CrPC. This court in Vinod Kumar v. State of Punjab [ (2015)3 SCC 220 ], while dealing with delay in examination and cross-examination was compelled to observe thus:- “If one is asked a question, what afflicts the legally requisite criminal trial in its conceptual eventuality in this country the two reasons that may earn the status of phenomenal signification are, first, procrastination of trial due to non-availability of witnesses when the trial is in progress and second, unwarranted adjournments sought by the counsel conducting the trial and the unfathomable reasons for acceptation of such prayers for adjournments by the trial courts, despite a statutory command under Section 309 of the Code of Criminal Procedure, 1973 (CrPC) and series of pronouncements by this Court. What was a malady at one time, with the efflux of time, has metamorphosed into malignancy. What was a mere disturbance once has become a disorder, a diseased one, at present”. And again:- “57.5 The duty of the court is to see that not only the interest of the accused as per law is protected but also the societal and collective interest is safeguarded. It is distressing to note that despite series of judgments of this Court, the habit of granting adjournment, really an ailment, continues. How long shall we say, “Awake! Arise!”. There is a constant discomfort. …” 38. Yet again, in Gurnaib Singh v. State of Punjab [ (2013) 7 SCC 108 )], the agony was reiterated in the following expression:- “35. We have expressed our anguish, agony and concern about the manner in which the trial has been conducted. We hope and trust that the trial courts shall keep in mind the statutory provisions and the interpretation placed by this Court and not be guided by their own thinking or should not become mute spectators when a trial is being conducted by allowing the control to the counsel for the parties. They have their roles to perform. We hope and trust that the trial courts shall keep in mind the statutory provisions and the interpretation placed by this Court and not be guided by their own thinking or should not become mute spectators when a trial is being conducted by allowing the control to the counsel for the parties. They have their roles to perform. They are required to monitor. They cannot abandon their responsibility. It should be borne in mind that the whole dispensation of criminal justice at the ground level rests on how a trial is conducted. It needs no special emphasis to state that dispensation of criminal justice is not only a concern of the Bench but has to be the concern of the Bar. The administration of justice reflects its purity when the Bench and the Bar perform their duties with utmost sincerity. An advocate cannot afford to bring any kind of disrespect to fairness of trial by taking recourse to subterfuges for procrastinating the same.” 39. There is a definite purpose in referring to the aforesaid authorities. We are absolutely conscious about the factual matrix in the said cases. The observations were made in the context where examination-in- chief was deferred for quite a long time and the procrastination ruled as the Monarch. Our reference to the said authorities should not be construed to mean that Section 311 CrPC should not be allowed to have its full play. But, a prominent one, the courts cannot ignore the factual score. Recalling of witnesses as envisaged under the said statutory provision on the grounds that accused persons are in custody, the prosecution was allowed to recall some of its witnesses earlier, the counsel was ill and magnanimity commands fairness should be shown, we are inclined to think, are not acceptable in the obtaining factual matrix. The decisions which have used the words that the court should be magnanimous, needless to give special emphasis, did not mean to convey individual generosity or magnanimity which is founded on any kind of fanciful notion. It has to be applied on the basis of judicially established and accepted principles. The approach may be liberal but that does not necessarily mean “the liberal approach” shall be the rule and all other parameters shall become exceptions. It has to be applied on the basis of judicially established and accepted principles. The approach may be liberal but that does not necessarily mean “the liberal approach” shall be the rule and all other parameters shall become exceptions. Recall of some witnesses by the prosecution at one point of time, can never be ground to entertain a petition by the defence though no acceptable ground is made out. It is not an arithmetical distribution. This kind of reasoning can be dangerous.” 10. Considering the aforementioned facts and circumstances of the case, the stage when application under Section 311 of Cr.P.C. is filed and that too after extensively cross-examining prosecutrix as observed by learned trial Court, I do not find any merit in this petition. 11. Accordingly, this petition being devoid of any substance is liable to be and is hereby dismissed.