JUDGMENT : ANIL KUMAR CHOUDHARY, J. 1. Heard the parties. 2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the order dated 13.02.2024 passed by the learned Additional Sessions Judge 1st, Rajmahal in Sessions Trial No. 248 of 2013 whereby and where under the petition under Section 311 Cr.P.C. filed by the informant of the case has been allowed by the learned trial court. 3. It is submitted by the learned counsel for the petitioner that in the said Sessions Trial No. 248 of 2013, charge was framed on 14.07.2014 and in between 12.07.2018 to 05.01.2022, all the witnesses have been examined including Om Bihani Bibi and Allauddin Ansari and they have neither been declared hostile by the prosecution nor the prosecution cross-examined them. On 29.11.2022, the case of the prosecution was closed. On 09.12.2022, the statement of the petitioner who is the accused person of the case was recorded under Section 313 Cr.P.C. The evidence of the defence was closed on 06.04.2023. The case was fixed for judgment on 12.01.2024. On 08.01.2024, the informant filed an application under Section 311 Cr.P.C. with a prayer for examination of the three witnesses including PW-1 and PW-3. On 13.02.2024, the learned Additional Sessions Judge-I, Rajmahal allowed the said prayer subject to deposit of Rs.2,000/- before 21.02.2024 to be deposited in the Nazarat and directed the prosecution to examine all its witnesses within three weeks. 4. It is submitted by the learned counsel for the petitioner that the said order dated 13.02.2024 is a vague, cryptic, unreasoned and non-speaking order and the said order even do not disclose the names of the witnesses or the purpose of their examination and his witnesses the belated the stage, when the trial is at the fag end being posted for judgment. It is next submitted that the said order indicates, as if the witnesses examined are fresh witnesses and there is no whisper that two out of three witnesses sought to be examined by the informant have already been examined in this case and after their cross-examination, they have been discharged. Thus, it is submitted, that the said order has been passed without application of mind by the learned court below. 5. Relying upon the Judgment of Hon’ble Supreme Court of India, in the case of State (NCT of Delhi) Vs. Thus, it is submitted, that the said order has been passed without application of mind by the learned court below. 5. Relying upon the Judgment of Hon’ble Supreme Court of India, in the case of State (NCT of Delhi) Vs. Shiv Kumar Yadav and Another, (2016) 2 SCC 402 Para-27 of which reads as under: “27. It is difficult to approve the view taken by the High Court. Undoubtedly, fair trial is the objective and it is the duty of the court to ensure such fairness. Width of power under Section 311 Cr.P.C. is beyond any doubt. Not a single specific reason has been assigned by the High Court as to how in the present case recall of as many as 13 witnesses was necessary as directed in the impugned order. No fault has been found with the reasoning of the order of the trial court. The High Court rejected on merits the only two reasons pressed before it that the trial was hurried and the counsel was not competent. In the face of rejecting these grounds, without considering the hardship to the witnesses, undue delay in the trial, and without any other cogent reason, allowing recall merely on the observation that it is only the accused who will suffer by the delay as he was in custody could, in the circumstances, be hardly accepted as valid or serving the ends of justice. It is not only matter of delay but also of harassment for the witnesses to be recalled which could not be justified on the ground that the accused was in custody and that he would only suffer by prolonging of the proceedings. Certainly recall could be permitted if essential for the just decision but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary “for ensuring fair trial” is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. Mere observation that recall was necessary “for ensuring fair trial” is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial. Having regard to these considerations, we do not find any ground to justify the recall of witnesses already examined.” (Emphasis supplied) It is submitted by the learned counsel for the petitioner that the learned trial court has failed to consider the matter of delay, the harassment for the witnesses to be recalled and the attending circumstances and without forming any opinion that the evidence sought to be adduced by the witnesses is essential for the just decision of the case; even though the witnesses sought to be examined were not present in the court at the time of passing of the impugned order by the trial court. Hence, it is submitted that the order dated 13.02.2024 passed by the learned Additional Sessions Judge 1st, Rajmahal in Sessions Trial No. 248 of 2013 being not sustainable in law be quashed and set aside. 6. The learned Addl. P.P. on the other hand vehemently opposes the prayer for quashing the order dated 13.02.2024 passed by the learned Additional Sessions Judge 1st, Rajmahal in Sessions Trial No. 248 of 2013 and submits that the learned Additional Sessions Judge-1st has given a fair opportunity to the prosecution to examine its witnesses which it could not be examined earlier. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 7. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 7. Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that it is a settled principle of law that exercise of the power vested under Section 311 Cr.P.C. upon a court is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent the failure of justice and not arbitrarily. 8. It is a settled principle of law that the determinative factor for exercising the discretionary power vested upon the court under section 311 Cr.P.C. is whether the evidence sought to be adduced is essential to the just decision of the case, as has been held by the Hon’ble Supreme Court of India in the case of Vijay Kumar Vs. State of Uttar Pradesh and Another, (2011) 8 SCC 136 . In the said case, the Hon’ble Supreme Court of India has also observed that the discretionary power conferred under Section 311 Cr.P.C. has to be exercised judicially for reasons stated by the court and not arbitrary or capriciously. 9. Now coming to the facts of the case, it is evident from the copy of the petition filed by the informant under section 311 of the Code of Criminal Procedure as well as the order dated 13.02.2024 that though the informant has sought to examine only three witnesses namely Om Bihani Bibi who has already been examined as PW-1 and Allauddin Ansari who has already been examined as PW-3 besides one Imran Ansari but the trial court remained oblivious to the fact that Om Bihani Bibi and Allauddin Ansari have already been examined as PW-1 and PW-3 respectively and that the informant has not made the prayer for recalling them nor the trial court assigned any reason or expressed the purpose and intent for recalling such witnesses. Further, the petition filed under Section 311 Cr.P.C. as well as the impugned order is silent as to, which kind of evidence could be adduced by the three witnesses. Further, the petition filed under Section 311 Cr.P.C. as well as the impugned order is silent as to, which kind of evidence could be adduced by the three witnesses. Similarly, in the order dated 13.02.2024, the learned Additional Sessions Judge-1st, Rajmahal has failed to take note of the fact that two out of the three witnesses sought to be examined as already mentioned above were already examined as prosecution witnesses and they were never declared hostile nor they were cross-examined by the prosecution and they have been discharged after their cross-examination nor any express order has been passed for recalling them for their further cross-examination nor the learned Additional Sessions Judge-1st has assigned any reason, why their examination on further examination on recall is the case may be, in case of each of the witnesses sought to be examined in exercise of the power under section 311 of the Code of Criminal Procedure; is necessary. Moreover, though there is no prayer in the petition filed under Section 311 Cr.P.C. to examine any witness other than the three witnesses whose names have been already indicated above in the foregoing paragraphs of the judgment, the learned Additional Sessions Judge-1st, Rajmahal has crossed illegality by passing a general order directing the prosecution to produce all witnesses and by not mentioning, as to which witness and for what purpose witnesses are to be examined; more so when such witnesses were not present in the court for their examination. 10. Under such circumstances, this Court has no hesitation in holding that the order dated 13.02.2024, passed by the learned Additional Sessions Judge-1st, Rajmahal in Sessions Trial No. 248 of 2013 is not sustainable in law. Accordingly, the same being cryptic, vague and non-speaking order and being not in accordance with law is quashed and set aside. 11. In the result, this criminal miscellaneous petition is allowed.