Neutral Citation No. - 2025:AHC-LKO:27242 Court No. - 14 Case :- APPLICATION U/S 482 No. - 3884 of 2025 Applicant :- Vijay Kumar Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And 3 Others Counsel for Applicant :- Dileep Kumar Tiwari,Md.Khurshed Ahmad Counsel for Opposite Party :- G.A. Hon'ble Manish Kumar,J. 1. Heard learned counsel for the applicant and Shri Rajesh Pathak, learned AGA appearing for the State. 2. The present application has been preferred against the impugned order dated 12.03.2025 whereby the application preferred by the applicant under Section 348 B.N.S.S. for recalling the PW-2-victim has been rejected. 3. Learned counsel for the applicant has submitted that there are contradictions in the statements given by the PW-2-the victim before the Police under Section 161, before the Magistrate under section 164 Cr.P.C. and the statement given before the Medical Officer at the time of her medical examination. The court has rejected the application preferred by the applicant finding that the applicant has moved the said application just to linger the proceedings and there is no justification to allow the application. 4. It is further submitted that the earlier counsel had not conducted the matter sincerely and when the subsequent counsel has been engaged, he has found shortcomings and discrepancy at the time of evidence and moved an application under Section 348 B.N.S.S before the lower court. 5. On the other hand, learned AGA has submitted that mere change of counsel or incompetence of him/her, the witnesses cannot be recalled. In this regard, he placed reliance upon the judgment of Hon'ble Supreme Court in the case of State (NCT of Delhi) Vs. Shiv Kumar Yadav and another (2016) 2 SCC 402. The relevant extract of the said judgment is being reproduced hereinbelow:- "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. 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." 6. It is further submitted that the cross examination/examination-in-chief of PW-2 has already been completed on 14.03.2022 whereas the application for recall was moved on 06.03.2025 with a delay of about 3 years just to linger the proceedings. 7. On being asked from the learned counsel for the applicant whether the statements made under Sections 161 Cr.P.C., 164 Cr.P.C. and statement made before the Medical Officer at the time of medical examination of victim were available with the learned counsel for the applicant when he had cross examined the respondent no. 2 , he has said that these documents were available but the then counsel has not cross examined the PW-2 on the said issue and after engagement of new counsel, he seen the file and moved the application. 8. After hearing learned counsel for the parties, going through the record of the case and reasons enumerated by Hon'ble Supreme Court on which, recall of witnesses cannot be permitted in the case of Shiv Kumar Yadav (supra), it is found that the statement made by the learned counsel for the applicant is incorrect as from perusal of the record i.e. particularly page no. 29 of the paper-book, where it is mentioned that PW-2 was cross examined by the learned counsel for the applicant regarding statement made by her under Section 164 Cr.P.C. 9. It is also a settled law that recall of witnesses is not for the purpose of filling up lacuna. The application was moved after three years of the evidence of PW-2 so the application has been moved just to linger the proceedings and not for any other purpose thus, the learned court below has rightly rejected the application moved by the applicant under Section 348 of B.N.S.S., thus, no interference is called for. 10. In view of the aforesaid, the present application is hereby dismissed. Order Date :- 9.5.2025 Ashish Digitally signed by :- ASHISH MISHRA High Court of Judicature at Allahabad, Lucknow Bench