Court No. - 71 Case :- APPLICATION U/S 528 BNSS No. - 5051 of 2025 Applicant :- Mohammad Ali Alias Lalla Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ambreen Masroor,Sadrul Islam Jafri,Sr. Advocate Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. 1. Heard Mr. N.I. Jafri, the learned Senior Counsel assisted by Mr. Sadrul Islam Jafri, the learned counsel for applicant and the learned A.G.A. for State. 2. Perused the record. 3. Applicant-Mohammad Ali Alias Lalla, who is a charge sheeted accused and facing trial before Court below, has approached this Court by means of present application under Section 528 BNSS . with the following prayer:- "It is, therefore, most respectfully prayed to this Hon'ble Court that this Hon'ble Court may graciously be pleased to allow this application and kindly issue direction to the learned Session Judge Rampur to summon the original document including the Enquiry Report dated 01.05.2018 and other documents, which was allowed vide order dated 18.11.2019 passed by learned Additional Session Judge Court No.2 Rampur in Case Crime No. 0490 of 2017 under Sections 147 148, 149,307,302 I.P.C. Police Station and thereafter proceed with the trial otherwise, the applicant will suffer irreparable loss and injury. It is further prayed that this Hon'ble Court may kindly be pleased to issue a direction to the Session Judge to decide the application dated 20.09.2022 for recalling P.W.10 S.H.O Ajay Kumar for further cross examination. And/or to pass such other and further order or direction which this Hon'ble Court may deem fit and proper under the aforesaid circumstances of the case." 4. At the very outset, the learned A.G.A. has raised a preliminary objection with regard to the maintainability of the first prayer prayed for by means of present application i.e. to direct Sessions Judge to summon the original document including the Enquiry report dated 01.05.2018. According to the learned A.G.A. an application under Section 91 Cr.P.C. can be filed by accused during course of trial only at the stage of defence evidence i.e. Section 243 Cr.P.C., in view of the law laid down by the Apex Court in three judges Bench judgment in State of Orissa Vs. Debendra Nath Padhi (2005) 1 SCC 568. He therefore, contends that first prayer prayed for by means of present application is misconceived in law and therefore, liable to be rejected. 5. When confronted with above, the learned Senior Counsel fairly submits that the first prayer prayed for by means of this application be dismissed as withdrawn. 6. It is accordingly permitted to be withdrawn. 7. So far as the second prayer prayed for by means of present application is concerned, the learned Senior Counsel submits that an application under Section 311 Cr.P.C. dated 20.09.2022 for recall of the P.W. 10 S.H.O. Ajay Kumar, the said application has not yet been decided by Court below. It is thus urged by the learned Senior Counsel that interest of justice shall be served in case a positive direction is issued by this Court to decide aforementioned application within a time bound period. 8. Learned A.G.A. submits that he cannot have any objection in case a direction is issued by this court to consider the aforementioned application in accordance with law. 9. Accordingly, this application is disposed off finally with a direction to concerned Sessions Judge to consider the application dated 20.09.2022 under Section 311 Cr.P.C. seeking recall of the PW-10 expeditiously preferably within a period of two months from the date of production of a certified copy of this order. Order Date :- 19.2.2025 Imtiyaz Digitally signed by :- IMTIYAZ AHMAD High Court of Judicature at Allahabad