Court No. - 70 Case :- APPLICATION U/S 528 BNSS No. - 14989 of 2025 Applicant :- Mukeem Opposite Party :- State of U.P. and Another Counsel for Applicant :- Pavan Kumar Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. Heard Mr. Pavan Kumar, the learned counsel for applicant and the learned A.G.A. for State/opposite party-1. Applicant who is 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 that this Hon'ble Court may graciously be pleased to allow this application of the applicant under Section 528 B.N.S.S. and this Hon'ble Court may kindly be pleased to quash the impugned order dated 19.03.2025 passed by the court of Additional Sessions Judge, Court No. 3, Bijnor in Session Trial No. 1783 of 2024 (State Vs. Wasim and others) in Connection with Case Crime No. 219 of 2024 under Sections 147, 148, 323 / 149, 302 / 149, 504 and 506 IPC Police Station Nahtaur, District Bijnor, otherwise the applicant shall suffer irreparable loss and injury. It is further be prayed before the Hon'ble Court kindly may stay the further proceeding of Session Trial No. 1783 of 2024 (State Vs. Wasim and others) in Connection with Case Crime No. 219 of 2024 under Sections 147, 148, 323 / 149, 302 / 149, 504 and 506 IPC Police Station Nahtaur, District Bijnor pending before the court of Additional Sessions Judge, Court No. 3, Bijnor during the pendency of the instant application before this Hon'ble Court, so that justice may be done." Record shows that during pendency of trial, an application dated 18.2.2025, under section 311 Cr.P.C. was filed by the prosecutrix with the prayer that Furkan be summoned as he is natural witness of the occurrence, giving rise to present proceedings. Apart from above, it was further stated that P.W.4 who is an injured witness in his deposition has taken the name of this witness. Furkan was also examined by the investigating Officer during course of investigation but has not been nominated as prosecution witness in the charge sheet. Apart from above, the shop of this witness is situate near the place of occurrence. Therefore, his testimony is essential to decide the guilt of accused. Aforesaid application was opposed by accused applicant who filed his objection dated 24.2.2025 to the same. Ultimately, the Court below upon evaluation of the grounds raised in the aforesaid application as well as the objections raised on behalf of accused/applicant concluded that aforementioned application is liable to be allowed in the interest of justice. Accordingly, Court below by means of order dated 19.3.2025 allowed the said application. Thus feeling aggrieved by the above order dated 19.3.2025, applicant has now approached this Court by means of present application. At the very outset, learned A.G.A. for state opposite party-1 has raised a preliminary objection by contending that accused has no right to guide and govern the quality and quantity of evidence sought to be proved by to be proved by the prosecution during the course of trial. Since present case is recall of a fresh witness and not recall of a witness, therefore, prejudice can be said to be caused to the accused as it is not a case of filing in the lacuna in evidence. He, therefore contends that objection raised by accused to the said application before Court below was wholly misconceived. On the aforesaid premise, the learned A.G.A. submits that no illegality has been committed by Court below in passing the order impugned. It is then contended by the learned A.G.A. that the Apex Court in the case of Varsha Garg Vs. State of M.P., 2022 SCC OnLine SC 986, has held that that Section 311 Cr.P.C. is an enabling provision, which enables the Court to find out the truth, which also is the ultimate object of the trial. In view of above, there can be no limitation for filing an application under Section 311 Cr.P.C. As such, no illegality has been committed by Court below in passing the order impugned. Learned A.GA. thus submits that no interference is warranted by this Court in present application. In view of above, the excerice of direction by court below cannot be said to be illegal or perverse. When confronted with above, the learned counsel for applicant could not overcome the same. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon perusal of record, this Court finds that the preliminary objection raised by learned A.G.A. in opposition to this application is clearly borne out from the record and further the same could not be dislodged by the learned counsel for applicant, with reference to the record at this stage. As such, no good ground exists to entertain the present application. In view of above, this application fails and is liable to be dismissed. It is accordingly dismissed. Order Date :- 7.5.2025 Arshad Digitally signed by :- ARSHAD MAHMOOD High Court of Judicature at Allahabad