JUDGMENT : A. Pasayat, J. - Petitioner calls in question legality of order passed by learned Judicial Magistrate, first class, Cuttack refusing his prayer for being recalled for the purpose of re-examination. The said prayer was in terms of Section 138 of the Indian Evidence Act, 1872 (in short, the 'Evidence Act') and u/s 31 of the Code of Criminal Procedure, 1973 (in short, the Code') 2. A brief reference to the facts situation which is almost undisputed is necessary. Prosecution has been launched' against the petitioner for commission of offence punishable u/s 16(1)(a)(i) of the Prevention of Food Adulteration Act, 199i4 (in short, the 'Act'). After closure of prosecution case, accused petitioner entered into defence by examining himself as a witness (DW 1). One of the pleas taker* by the petitioner related to warranty. It was pleaded that petitioner had purchased the mustard oil from which sample was collected by the Food Inspector from another concern (M/s. Prag Oil Milh. The purchase invoice was marked as Ext. A. During cross-examination it was stated by the petitioner that the only signature appearing in Ext. A is his signature. The learned counsel for the petitioner prayed for examination of the witness under Sec 138 of the Evidence Act and Section 311 of the Code It was submitted that there was a bona fide mistake in stating that the only signature was that of the accused, as the signature as appearing in Ext.A is completely different from various signatures of the accused-petitioner appearing in the case record. The complainant (opposite party herein ) filed objection. The prayer was rejected on 9-7-1393 by the learned JMFC. An application for revision was filed before learned Sessions Judge, Cuttack, The application was disposed of with the observation that in case opportunity of the defence is closed, real truth whether the accused has purchased from M/s. Prag Oil Mill Depot under cash memo (,Ext, A) cannot properly be deter- mined to appreciate his version. He recorded the concession of both parties that the accused, if he so likes, may examine either the owner of M/s. Prag Oil Mill Depot situated at Malgodown or the manufacturer who is alleged to have sold the brand in support of his defence and observed that in such a situation, Court can appreciate the truth or otherwise of the defence version. He further observed that after examination of those witnesses, question may arise about recall of DW 1 and H at that stags he files a fresh application, it will be considered on its own merit. After disposal of the revision application prayer was made by the petitioner to issue summons to the owner of M/s. Prag Oil Mill, and/or the manafacturer of M/s. Prag Oil Mill who had issued Ext. A. Despite service notice by affixture, there was no appearance by the notice. Therefore for clarification of the question whether signature of the accused- petitioner appears on Ext. A prayer was made to recall the witness. The learned JMFC rejected the prayer on the ground that the manager of M/s. Prag Oil Mill or any other person having not been examined, question of petitioner's examination on recall does not arise. 3. According to the learned counsel for petitioner, the approach of the learned JMFC is erroneous, and is in clear contradiction of the permission granted by the learned Sessions Judge. In spite of his best efforts, persons connected with M/s, Prag Oil Mill and/or manufacturer did not appear to lead evidence. In such a situation the petitioner cannot be denied the opportunity to bring out the truth. The learned counsel for the Food Inspector, Cuttack Municipality (complainant* opposite party herein) submitted that in an urguarded moment the truth has come out, and permitting the witness to be re-examined would result in taking away effect of the admission, and lot of red-herrings would be drawn. 4. Section 138 of the Evidence Act deals with order examinations and direction of re-examinations Re-examination of a witness must be confined to the explanation of matters referred to in cross-examination ; no new matter can, without the permission of the Court, be introduced in re-examination. Therefore, the party calling the witness must obtain from the witness in his examination-in-chief all that the witness knows in the party's favour or in his own favour. A re-call for re-cross-examination will ordinarily be unnecessary, except in the rare cases where the direct examination of an intervening witness has brought out new facts upon which the prior witness may throw light, and for this the matter can always be left in the hands of the trial Court. A re-call for re-cross-examination will ordinarily be unnecessary, except in the rare cases where the direct examination of an intervening witness has brought out new facts upon which the prior witness may throw light, and for this the matter can always be left in the hands of the trial Court. Under ordinary circumstances it is not necessary or permissible to allow a witness once examined and dismissed by a party to be recalled, for it is expected that the advocate will interrogate him on all material points touching his case. Unforeseen situation may however develop and there may also be inadvertent omissions. in such cases, the Court may in its discretion allow a witness to be recalled. But surprise or prejudice to the other party should be guarded against, as when the other party has dismissed his witnesses after the close of the case of both parties. Nor should a party be allowed to till up lacuna in evidence under the pretext of a recall In Carrary v. Connary 5 Bin 488, Tighaman, C. J, said "It may be necessary, in order to come at the truth of the case, to examine him as to new matter, and after that there may be a second cross-examination, The Courts at their discretion may permit a witness to be examined by either party over and over again at any time during the trial. But they will take care to exercise this discretion, so as not to suffer any advantage to be gained or trick or artifice. 5. The question of re-examination arises only after the conclusion of the cross-examination and is directed to the explanation of any part of his evidence during cross-examination which is capable of being construed unfavourably to the party applying for re-examination. New facts or matters which are not properly explanatory cannot be introduced in re-examination. New matters, may, however be introduced by permission of the Court, in which case the adversary may further cross-examine upon the matter. But this cannot entitle the prosecution to examine-in-chief on the substantive case of the prosecution after the defence has closed its case in the cross examination of the witness. 6. The Court can take steps enumerated in Section 311 even after prosecution and defence have closed their evidence. But this cannot entitle the prosecution to examine-in-chief on the substantive case of the prosecution after the defence has closed its case in the cross examination of the witness. 6. The Court can take steps enumerated in Section 311 even after prosecution and defence have closed their evidence. It is clear that requirement of just decision of the case does not limit it to action for the interest of accused persons. Action may equally benefit prosecution. Section 311 contains two parts. The first part gives a discretionary power to the Court and the second part is mandatory. Where the evidence of any person appears to the Court to be essential to the just decision of the case, the Court is bound to act in any of the three ways mentioned under the first part, i. e., summon a new witness, examine a person present or recall a witness and re-examine him. If the conditions of Section 311 are satisfied, the Court can calf a witness not only on the application of either party, but on its own motion. (See Masalti Vs. State of U.P., . 7. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Coda to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides, it is the duty of a Court not only to do justice but also to ensure that justice is being done. In order to enable the Court to find out the truth and render a just decision, the salutary provisions of Section 311, Cr PC are enacted where under any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined who are expected to be able to throw light upon the matter in dispute ; because if judgments, happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated. The very usage of words such as 'any Court', 'at any stage', or 'of any enquiry, trial or other proceedings* 'any person' and 'any such person' clearly spells out that this section is expressed in the widest possible terms arid do not limit the discretion of the Court in any way. However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice requirs and exercised judicially with circumspection and consistently with the provisions of the Cr PC. The second part of the section does not allow for any discretion but it binds and compels the Court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case. 8. Though Section 311, Cr PC is. in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which they should be exercised, that power is circumscribed by the principle that underlines Section 311, namely* evidence to be obtained should appear to the Court essential to a just decision of the case by getting at the truth by all lawful means. Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the Court while exercising the power under this section and it should not be used for filing up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties. It is. there- fore, clear that the Criminal Court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the Court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case. See Mohanlal Shamji Soni Vs. Union of India and another, .) 9. Order of the learned Sessions Judge that after the evidence of the persons connected with M/s. Prag Oil Mill, the question of petitioner's re-examination may be considered, has been too technically interpreted by learned JMFC. It is accepted by the learned counsel for parties that in spite of service of notice persons connected with M/s. Prag Oil Mill did not turn up to tender evidence. There is substance in the petitioner's stand that he has been left in a helpless condition. 10. Learned counsel for the opposite party urged that the petitioner is trying to prolong the proceeding. Such a grievance can be mitigated if the petitioner appears before the learned JWIFC on 9th August, 1994, and his re-examination is made within the para meter of Section 133, Evidence Act keeping in view the objects of Section 311, Cr PC. The application is accordingly disposed of.