Judgment 1. BY this revisional application under section 401 read with Section 482 of the Code of Criminal Procedure, the accused revisionists have challenged the order dated 8th February, 1991 passed by the learned Additional Sessions Judge, 2nd Court, Hooghly in Sessions Trial No. 109 of 1984 rejecting the application of the revisionists for recalling of P. W. 22 under Section 311 of the Code of Criminal procedure, 1973 read with Section 165 of the Indian Evidence Act. 2. TO appreciate the complexity of the matter, the scoring of the background in brief of the case is set out here under:-On an anonymous phone call to the Tarakeswar Police Station that on 5th November, 1981 the Sub Inspector Sri Samir Das Gupta, p. W. 22, along with police personal went to Khamarbari of Krishna Mohan Manna at 8.45 a.m. and found that some of, the miscreants being revisionist nos. 4, 6, 7 and 9 have been apprehended and detained by the local people. He found the dead body of Prosed chandra Manna lying there with multiple injuries. He recorded the statement of Paresh Manna, the brother of the deceased, which was treated as F. I. R. On the basis of the same, he started Tarakeswar p. G. Case No. 5 of 196 dated 5. 11. 81 under sections 148, 149, 302 and 379 I. P.C. He took custody of the aforesaid revisionists. Before that he took up the investigation off the case as was endorsed to him by his superior authority. On that date he arrested petitioners no. 5, 11 and 12 from a nearby place in a paddy field. on 8th December, 1981 he arrested Manasha Adak, petitioner no. 2 herein. After completion of the investigation he submitted charge-sheet against all the accused persons under Sections 148, 149 and 302 I.P.C. and under Section 379 I. P. C. against accused Tarak Mallick, petitioner no. 5. To goured the accused persons within the fold of the charges of the offence alleged prosecution examine 22 witnesses of whom P. W. 22 Samir Dasgupta was the I. O. He was examined, cross-examined and further cross-examined on recall. After examination of the accused persons under Section 313 of the code of Criminal Procedure, the accused persons entered into the defence and examined 9 witnesses. After examination of the accused persons under Section 313 of the code of Criminal Procedure, the accused persons entered into the defence and examined 9 witnesses. After the completion of the argument of the prosecution when the defence was called upon to argue the case at that point of time an application was made; under Section 311 of the Code of Criminal Procedure, 1973 read with Section 165 of the Indian Evidence act by petitioner no. l along with 9 other petitioners praying for recalling p. W. 22, Sri Samir Dasgupta, the I.O. alleging that during the time of arrest of the accused persons. Statements were made by them before the said witness who recorded the said statements and cross-examination on that point required to be made to prove: the conduct of the said accused persons. 3. IT has further been alleged in the petition that though the petitioner no. l herein, Raghunath Manna was granted anticipatory bail subsequent to 8. 12. 81 he was not arrested by P. W. 22 when he visited the Tarakeswar p. S. on 8. 12. 81 and met P. W. 22 in collection with securing the release of accused Manasha Adak. 4. FURTHER allegation has been made that during the course of argument the learned advocate, Srijit Kumar Ganguly for Raghunath Manna contended on 7. 1. 82 and 9. 1. 82 that Raghunath Manna was available in Tarakeswar P. S. on 8. 12. 81 as he met I. O. then and the then learned public Prosecutor Kazi Sofiulla admitted that fact before the Court Though instruction was given to the said learned advocate, Mr. Ganguly by raghunath Manna about the said fact but due to long lapse of time that instruction went into oblivion as a result of which no cross-examination could be directed on that point and that came to the light after taking certified copies of the evidence. It has also been alleged that no question was put to the accused persons on that point in their examination under section 313 of the Code of Criminal Procedure, 1973. The learned Magistrate by the impugned order rejected the prayer for recalling of P. W. 22. 5. MR. It has also been alleged that no question was put to the accused persons on that point in their examination under section 313 of the Code of Criminal Procedure, 1973. The learned Magistrate by the impugned order rejected the prayer for recalling of P. W. 22. 5. MR. Dipak Sengupta, the learned advocate for the petitioners contended inter alia, that cross-examination OH recall of P. W. 22 is necessary for a just decision of the case and refusal of such prayer amounts to denial of justice to the accused persons. In support of his contention he placed reliance on a Division Bench decision of the Sikkim high Court in the case of State of Sikkim us. Pemba Sherpa and another, reported in 1981 Cri L. J. 856 and a single Bench decision of this High court in the case of Mukti Kumar Ghosh vs. State of West Bengal reported in 1975 Cri L. J. 838. 6. LEARNED Advocate, Mrs. Aloknanda Bose for the State on the other hand contended that if such permission is granted at this later stage then that will cause prejudice to the prosecution case and the effect of examination and cross-examination of the prosecution witnesses, the examination of the defence witnesses their cross-examination and the effect of argument advanced on behalf of the prosecution will be set at naught. With patience and anxiety, I have heard the rival contentions of the learned advocates for the parties. Perused the record and considered the position of law on this matter. 7. IT will be evident that the scope of Section 311 Cr. P. C., 1973 is of wide amplitude of power because of the use of the expression "any" throughout the length of the Section. There is nothing to limit action under the Section "to something in the interest of the accused only" but may equally benefit the prosecution. If the Court feels that certain evidence is available or can reasonably be made available and the same would be essential to a just decision of the case, whether in favour of the prosecution or the defence, the Court is not merely to fold its hands or to bang the prosecution or to hand the defence simply because they or any of them did not take reasonable steps to bring such evidence on record. 8. THERE is a dichotomy in Section 311 of the Code of Criminal procedure. 8. THERE is a dichotomy in Section 311 of the Code of Criminal procedure. The first part of the section is discretionary in nature because of use of the word "may" but the second part or the latter part of the section is obligatory or mandatory in nature for the use of the expression "shall" if the Court feels that evidence would be required for "the just decision of the case". Under the discretionary part of the Section the Court has the power- (a) summon any person as a witness, or (b) examine any person in attendance, though not examined as a witness, or (c) recall and re-examine any person already examined. The Court has the same power under the second or mandatory part of the section if it appears to the Court that examination of the witnesses or recall or re-examination of such person is essential for a just decision of the case. Some of the principles for exercising the discretionary power under the section are (a) it should be exercised with caution and circumspection (b) consistency with the provision of the Code and the principles of criminal law (c) it has to be exercised judicially or reasons stated by the Court (d) the power to exercise discretion under the section depends on the facts of each case. But under the second part of the section the guiding principle is that it appears to Court "to be essential to the just decision of the case." I have already pointed out that the Section 311 is of very wide amplitude in power and it is not limited to any stage of any enquiry, trial or other proceeding under the Code till the judgment is pronounced. So, I do not find any merit in the submission of Mrs. Bose that the stage is very late when an application under Section 311 has been made in the instant case. 9. IN a murder trial the Court should be cautious and slow in disposing of an application under Section 311 of the Code of Criminal Procedure. So, I do not find any merit in the submission of Mrs. Bose that the stage is very late when an application under Section 311 has been made in the instant case. 9. IN a murder trial the Court should be cautious and slow in disposing of an application under Section 311 of the Code of Criminal Procedure. The Supreme court in the case of Jamatraj Kewalji Govani vs. State of maharashtra reported in A. I. R. 1968 Supreme Court 178 at page 182 observed : "it is difficult to limit the power wider our Code to cases which involve something arising ex improviso which no human ingenuity could foresee, in the course of the defence. Our Code does not made this a condition of the exercise of the power and it is not right to embark on judicial legislation Cases that go that far of course not quite right. Indeed they could be decided on fact because it can always be seen whether the new matter is strictly necessary for a just decision and not intended to give an unfair advantage to one of the rival sides. Even in England where the rule in Dora harris case, 1s27-2 KB 587 obtains, the powers of the Court have not been held to be wrongly exercised, when fresh evidence has been let in for a just decision." Similar is the view expressed by this High Court in Mukti Kumar ghosh's case (supra) and by the Sikkim High Court in the case of Pemba Sherpa and another (supra. 10. THE Sessions Judge while refusing the prayer of recalling P. W. inter alia, observed as under: - "at first I think that the case diary after framing of charge is considered to be the document of Court. So, the Court is in a position to consult the C.D. in respect of the abscondence of recording or statement of the accused by I.O., even if the I.O. is not examined on recall. So, the Court is in a position to consult the C.D. in respect of the abscondence of recording or statement of the accused by I.O., even if the I.O. is not examined on recall. Moreover, it appears from the record itself that sufficient time has been given to the accused persons for examination of the several witnesses so that the accused persons might not be prejudiced." (Sic) Section 172 (2) of the Code of Criminal Procedure provides that "any criminal Court may send for the police diary of a case under enquiry or trial in such Court and may use such diaries, not as evidence in the case, but to aid it in such enquiry or trial. " 11. SO from a plain reading of sub-Section (2) of Section 172 of the code of Criminal Procedure, it is evident that case diary cannot be used as evidence but it can be used in aid. From the observation of the learned sessions Judge misconceived the law on this point in thinking that he can use the case diary as evidence in respect of abscondence or recording the statements of the accused persons by the I. O. even if the I. O. , is not examined on recall. Law does not permit such thing. This observation indicates that examination of the I. O. on this point is necessary for a just decision. This has been indicated by the learned Sessions Judge in his order while observing that: even without recalling the I. O. he can consult the C. D. in respect of the abscondence or recording the statement of the accused persons by the I. O. So, the case comes within the second part of Section 311 making it mandatory or obligatory on the part of the Court to recall the witness for the purpose of examination of the witness on this points. 12. IN that view of the matter, I find merit in the revisional application and so also in the submission of Mr. Sengupta. Accordingly, the revisional application is allowed. The impugned order of the learned Sessions Judge is hereby set aside. The learned sessions Judge is directed to allow the prayer for recalling P. W. 22 as made by the revisionist. Application allowed.