Neutral Citation No. - 2025:AHC:136074 Court No. - 79 Case :- APPLICATION U/S 528 BNSS No. - 25695 of 2025 Applicant :- Nanhe Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Mohammad Belal Counsel for Opposite Party :- G.A. Hon'ble Avnish Saxena,J. 1. Heard Sri Mohammad Belal, learned counsel for the applicant,learned A.G.A. for the State and perused the record. 2. The present application has been preferred by the applicant against the impugned order dated 30.06.2025 passed by Additional Sessions Judge/Special Judge (POCSO Act), Hapur on an application under Section 311 Cr.P.C. filed in Sessions Case No.1404 of 2022 (State of U.P. Versus Nanhe) arising out of Case Crime No.144 of 2022 under Sections 363, 376 I.P.C. and 3/4 of POCSO Act, Police Station Hafizpur, District Hapur, whereby the application under Section 311 Cr.P.C. moved by the accused- applicant has been rejected by the trial court. 3. It is submitted by the learned counsel for the applicant that after the new counsel was engaged from the side of the applicant, the application under Section 311 Cr.P.C. has been moved for recall of witnesses PW-1, informant and PW-2, the victim. The trial court has rejected the application merely on the ground of delay in trial. Learned counsel has relied on judgement dated 16.06.2022 passed by coordinate Bench of this Court in Criminal Misc. Application (U/S 482 Cr.P.C.) No.12409 of 2022. 4. Learned A.G.A. for the State is present. 5. None appeared for opposite party nos.2 and 3. 6. This Court does not find it sufficient to issue notice to opposite party no.4 as the matter pertains to recall of witnesses. 7. In the present case, the F.I.R. has been registered on 19.06.2022 for the incident of 15.06.2022 lodged by father of the prosecutrix alleging that his daughter was taken away by accused-applicant- Nanhe. After investigation, the charge-sheet is submitted under Sections 363, 376 I.P.C. and 3/4 of The Protection of Children From Sexual Offences Act, Police Station Hafizpur, District Hapur. The informant has been examined in the court on 06.02.2023, whereas the victim has been examined on 02.06.2023. With the engagement of new counsel for the accused, an application has been moved on 17.10.2024 to recall the two witnesses. A set of questions have been framed, which are to be asked from PW-1 and PW-2, which are part of the application moved under Section 311 Cr.P.C. Learned trial court has rejected the application for the reasons that the questions, which are proposed to be placed, have already been asked from the witnesses. With engagement of new counsel this application under Section 311 Cr.P.C. has been moved. 8. The apex court in the case of State (NCT of Delhi) Versus Shiv Kumar Yadav and another (2016) 2 SCC 402 has made observation that mere incompetency and change of counsel cannot be a ground for recall of a witness. 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 allowed. The purpose is advancing justice and for ensuring fair trial. 9. The judgement cited by learned counsel passed in Criminal Misc. Application (U/S 482 Cr.P.C.) No.12409 of 2022 is not applicable in the present set of facts, where the application has been moved to produce the Investigating Officer for defence evidence. 10. The order is well reasoned and does not require any interference. Hence, the application does not have merit and is liable to be dismissed. 11. This application under Section 528 of B.N.S.S. is, accordingly, dismissed. Order Date :- 12.8.2025 MN/- (Avnish Saxena,J.) Digitally signed by :- MAHENDRA NATH High Court of Judicature at Allahabad