JUDGMENT : Sandeep N. Bhatt, J. 1. Since the order, which is challenged by the petitioner in respective petitions is common, hence, both the petitions are kept, together, heard together, considered together by common judgment and Special Criminal Application No.10715 of 2024 is considered as leading matter. 2.1 The Special Criminal Application No.10715 of 2024 is filed for seeking the following reliefs: (a) Your Lordship may be pleased to admit the present Criminal Revision Application; (b) Your Lordship be pleased to quash and set aside the order dated 30.03.2024 passed in Sessions Case No.22 of 2018 by the Learned Principal District and Session Judge, Navsari in the interest of justice. And allow the Exhibit no. 98 application filled by the prosecution before the Ld. Session Court, Navsari in Sessions Case No.22 of 2018. (c) Pending admission, hearing and till the final disposal of the application Your Lordship may be pleased stay the implementation and execution of the order dated 30.03.2024 passed by the Learned Principal District and Session Judge, Navsari in Sessions Case No.22 of 2018 in interest of justice. (d) Your Lordship may be pleased to grant any other and further relief in favour of present applicant.” 2.2 The Special Criminal Application No.10715 of 2024 is filed for seeking the following reliefs: “(A) YOUR LORDSHIPS may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or directions quashing and setting aside the impugned order dated 30.03.2024 passed by learned Sessions Judge, Navsari, below Exh. 98, in Sessions Case No.22 of 2018 (At ANNEXURE-A), and further be pleased to direct the Learned Sessions Judge, Navsari, to summon "Aashvi" residing at B-404, Shrifad Heights, Kudasan, Gandhinagar, as a witness, in Sessions Case No. 22 of 2018. (B) During pendency and final disposal of the present application, YOUR LORDSHIPS may be pleased to stay further proceedings of Sessions Case No. 22 of 2018, pending before the Learned Sessions Judge, Navsari. (C) xxx.” 3. (B) During pendency and final disposal of the present application, YOUR LORDSHIPS may be pleased to stay further proceedings of Sessions Case No. 22 of 2018, pending before the Learned Sessions Judge, Navsari. (C) xxx.” 3. Brief facts as per Special Criminal Application No.10715 of 2024 are as under: 3.1 The complainant being respondent no.3 namely Dhirubhai Chhaganbhai Gayakwad had filed a complaint at Navsari Rural Police Station, Navsarion 01.12.2017 being as F.I.R No. 224 of 2017 for the offence punishable under Sections 498(A), 306, 323, 504, 114 of Indian Penal Code, as well as Sections 3 and 7 of the Dowry Prohibition Act. The investigating officer has concluded the investigation and filed a charge sheet on 23.02.2018. After examining a total of 21 witnesses, the present petitioner had preferred an application under Section 311 of the Criminal Procedure Code, 1973 before the Learned Principal District and Session Judge, Navsari for examining the daughter of the deceased namely "Aashavi" as witness on 06.09.2023 and Sessions Case No.22 of 2018 on 30.03.2024, application of the present petitioner was rejected by the learned Principal District and Session Judge, Navsari. Hence, the present petitions have been preferred. 4. Heard Ms. C.M. Shah, learned APP appearing for the petitioner – State in Special Criminal Application No.10715 of 2024 and for respondent No.1 – State in Special Criminal Application No.5648 of 2024, Mr. P.P. Majmudar, learned advocate appearing for the respondent No.3 in Special Criminal Application No.10715 of 2024 and for the petitioner in Special Criminal Application No.5648 of 2024 and Mr. Jaydeep Sindhi, learned advocate appearing for the respondent Nos.1 and 2 in Special Criminal Application No.10715 of 2024 and for respondent Nos.2 and 3 in Special Criminal Application No.5648 of 2024. 5. Ms. C.M. Shah, learned APP appearing for the petitioner – State in Special Criminal Application No.10715 of 2024 and for respondent No.1 – State in Special Criminal Application No.5648 of 2024 has drawn my attention towards the order passed by the trial court and has submitted that the trial court has committed error in observing that the application under Section 311 of the Criminal Procedure Code is to create false evidence after examination of the witness is totally unreasonable and unfair. Furthermore, she has submitted that the trial court has committed error in not properly considering that no prosecution witnesses in their statements have mentioned about the presence of the minor child at the time of the alleged offence, therefore, her deposition is utmost important. Furthermore, she has submitted that the trial court ought to have considered that according to Section 118 of Indian Evidence Act, child witnesses are competent witnesses and stands at the same footing as lunatic, old age, ill person's evidence provided all of them have the rational understanding of questions put to them and being able to answer them rationally. Furthermore, she has submitted that the trial court has not considered all these aspects properly and the trial court ought to have considered that no prejudice would be cause to any of the parties, if the minor namely "Aashvi" is examined as witness, in the interest of justice, as the accused will get the opportunity to cross-examine. Furthermore, she has submitted that the trial court ought not to have considered that the child's memory is often vivid when it comes to emotional charged or significant events, while a child's memory might not always capture every detail, the events that hold significant emotional or experiential weight are often remembered vividly. Furthermore, she has submitted it is worth nothing the fact that the FIR, which is registered under Sections 498(A), 306, 323, 504, 114 of Indian Penal Code, as well as Sections 3 and 7 of the Dowry Prohibition Act and, therefore, the findings of trial court is erroneous and required to be interfered with by this Court. 6. Mr. P.P. Majmudar, learned advocate appearing for the respondent No.3 in Special Criminal Application No.10715 of 2024 and for the petitioner in Special Criminal Application No.5648 of 2024 has supported the submissions made at the bar by learned APP Ms. Shah, and has submitted that in Special Criminal Application No.5648 of 2024 is filed by the original complainant and the trial court has not properly considered the scope of Section 311 of the Cr.P.C. on the ground that straightaway the complainant is asking for summoning the child witness – Aashvi without recording any statement during course of investigation. Shah, and has submitted that in Special Criminal Application No.5648 of 2024 is filed by the original complainant and the trial court has not properly considered the scope of Section 311 of the Cr.P.C. on the ground that straightaway the complainant is asking for summoning the child witness – Aashvi without recording any statement during course of investigation. Furthermore, he has submitted that in fact, it comes out from the record that the petitioner has tried for recording statement of childe – Aashvi, and representation in this regard has also been made by the petitioner. Furthermore, he has submitted that the trial court ought to have considered that Aashvi is the sole eyewitness of the entire incident, and her deposition would go to the roots of the matter in the present case and for finding truth also, her deposition is important and hence, the trial court ought to have permitted her to depose before the Court. Lastly, in support of his submissions, he has relied upon the decision of the Hon’ble Apex Court in the cases of (i) Harendra Rai vs. State of Bihar reported in 2023 SCC Online SC 1023, and (ii) Rajaram Prasad vs. State of Bihar reported in (2023) 14 SCC 461, and has submitted that the trial court has committed gross error, which is required to be interfered with as no prejudice would cause to the other side, if the child witness deposes before the Court, the accused person will also get opportunity to cross-examine. 7. Mr. Jaydeep Sindhi, learned advocate appearing for the respondent Nos.1 and 2 in Special Criminal Application No.10715 of 2024 and for respondent Nos.2 and 3 in Special Criminal Application No.5648 of 2024 has submitted that order passed by the trial court is just and proper as the present accused person, who happens to father of the girl – Aashvi is deprived even from visitation rights during last so many year more particularly, from 2018 and after unfortunate death of his wife, the maternal grandfather has taken Aashvi with him and now Aashvi futured in such a manner by the maternal grandfather and other family members that she might have prejudice against her father. He has further submitted that no statement of Aashvi was recorded and considering the age of Aashvi at the time i.e. admittedly four years old and some month and when the application is given, she is aged about eleven years old. Otherwise also, no fruitful purpose would be served by taking the deposition of such witnesses. On the contrary, it will create harassment and mental trauma of such child witness. Therefore, he has submitted that the Court is duty bound to consider all these aspects and accordingly, the trial court has rightly come to the conclusion that after six years, such application is preferred, which is not required to be considered by considering the facts and circumstances and no relief can be granted by considering the application under Section 311 of the Cr.P.C. and, therefore, he has submitted that both the present petitions are required to be dismissed. 8.1 I have considered the rival submissions made at the bar. I have also considered the judgments cited at the bar. On perusal of the impugned order dated 30.03.2024 passed in Sessions Case No.22 of 2018 by the learned Principal District and Session Judge, Navsari below Exh.98 application, it transpires that it is filed under Section 311 of the Cr.P.C., which is as under: “311. Power to summon material witness, or examine person present. – Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. [311-A. Power of Magistrate to order person to give specimen signatures or handwriting. [311-A. Power of Magistrate to order person to give specimen signatures or handwriting. [Inserted by Act of 2005, Section 27 (w.e.f. 23-6-2006).] – If a Magistrate of the first class is satisfied that, for the purposes of any investitgation or proceeding under this Code, it is expedient to direct any person, including an accused person, to give specimen signatures or handwriting, he may make an order to that effect and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in such order and shall give his specimen signatures or handwriting: Provided that no order shall be made under this Section unless the person has at some time been arrested in connection with such investigation or proceeding.]” 8.2 It is not in dispute that in view of the above provision, the Court can examine any witness at any stage of the trial and it is the duty of the Court to examine all the available witnesses to appreciate all the available evidences pursuant to the matters pending before the trial court with a view to finding out the truth involve in the matters. In the present case, the wife of the accused has committed suicide and at the time of the incident, minor daughter – Aashvi was present, who was aged about four years and one month at the time of accident. It is note that the complaint is filed by the father of the deceased wife. It is also coming out on the record that at the relevant point of time, the father of the deceased – the original complainant has made attempt before the Investigating Agency – Police Authority by requesting them to record the statement of minor Aashvi, but somehow that request was not accepted at the time. It is also coming out on the record that at the relevant point of time, the father of the deceased – the original complainant has made attempt before the Investigating Agency – Police Authority by requesting them to record the statement of minor Aashvi, but somehow that request was not accepted at the time. Therefore, considering the judgment of the Hon’ble Apex Court in the case of Harendra Rai vs. State of Bihar reported in 2023 SCC Online SC 1023, whereby it is held that Section 311 of the Cr.P.C. should be invoked when “…it is essential for the just decision of the case.” The Hon’ble Apex Court has also considered the scope of Section 311 of the Cr.P.C. in the case of Rajaram Prasad vs. State of Bihar reported in (2013) 14 SCC 461 , and culled out following principles, as under: “…a) Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case? b) The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated. c) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person. d) The exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case. e) The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice. f) The wide discretionary power should be exercised judiciously and not arbitrarily. g) The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case. f) The wide discretionary power should be exercised judiciously and not arbitrarily. g) The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case. h) The object of Section 311 Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision. i) The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered. j) Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. k) The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results. l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party. m) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party. n) The power under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. n) The power under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.” 8.3 It is fruitful to refer the decision of this Court in the case of Pratik @ Hiren Vijaybhai Joshi vs. State of Gujarat and Others reported in 2019 (2) GLR 1074 , more particularly, paragraph Nos.7.3 and 8 are relevant, as under: “7.3 In the present case, the evidence of the victim is essential and vital hence, it is the bounden duty of the Court to summon and examine her to fulfill the requirement in order to arrive at a just decision. The impugned order allowing Exh.48 for summoning the victim cannot be termed as a filling up of the lacuna of the prosecution since her testimony or evidence would vitally affect the case of the prosecution. The reliance placed by the learned advocate for the petitioner upon the case of Shiv Kumar Yadav (Supra) cannot rescue the present petitioner since the same would not apply into the facts of the present case, as it pertains to the recall of the witnesses under Section 311 of the Code of Criminal Procedure on the pretext of incompetency and inefficiency of the defence counsel. 8.0 The upshot of the aforesaid discussion is that no illegality or perversity is found in the order dated 16.05.2016 passed below Exh.48 in Special Case (POSCO) No.45 of 2014 by the Special Judge (POSCO) City Civil Court No.2, Ahmedabad. The present writ petition fails and the same is hereby dismissed. Rule is discharged. Interim relief, if any, stands vacated.” 8.4 It is fruitful to refer the provisions of Section 118 of the Indian Evidence Act, as under: “Section 118 in The Indian Evidence Act, 1872:- 118. Who may testify. The present writ petition fails and the same is hereby dismissed. Rule is discharged. Interim relief, if any, stands vacated.” 8.4 It is fruitful to refer the provisions of Section 118 of the Indian Evidence Act, as under: “Section 118 in The Indian Evidence Act, 1872:- 118. Who may testify. All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Explanation. - A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.” 8.5 Considering the aforesaid position of law, and considering the fact that the minor Aashvi, who can be considered as sole eye-witness, who is important witness and considering the provisions of Section 118 of the Indian Evidence Act, I am of the opinion that the reasons assigned by the trial court are unjust and improper and not in accordance with law, and the discretion exercised by the trial court is also not in accordance with law and also not in consonance with the facts of the case and, therefore, the impugned order is required to be interfered with by this Court in the interest of justice. 9. Accordingly, the present petitions are allowed to the aforesaid extent. 10. The impugned order dated 30.03.2024 passed in Sessions Case No.22 of 2018 by the learned Principal District and Session Judge, Navsari below Exh.98 application is hereby quashed and set aside. 11. The prosecution is permitted to examine the minor witness – Aashvi and the trial court shall give proper opportunity to cross-examine the said witness by the defence and the trial court shall take proper care about the mental condition of minor girl at the time of her deposition.