Judgment ( 1 ) INVOKING the jurisdiction of this Court under Section 482 of the Code of criminal Procedure, the petitioner seeks the relief of quashing the order dated 25-02-2002 passed below Ex. 71 by the learned 3rd additional Sessions Judge, Akola, in Sessions trial No. 8/2002, whereby the application filed by the prosecution for recalling the witnesses nalini (P. W. 3) and Investigating Officer phundkar (P. W. 13) examined by the prosecution, was allowed. ( 2 ) BRIEF facts are as under : the petitioner/accused is facing trial for the offences punishable under Sections 328, 307, 302 and 392 of Indian Penal Code before the learned Sessions Judge. The evidence of nalini (P. W. 3) was recorded on 19-06-2001 and the evidence of P. S. I. Phundkar was recorded on 04-07-2001. The prosecution has closed its case by filing pursis dated 25-10-2001. The statement of accused under Section 313 of the Code of Criminal Procedure was recorded on 28-12-2001. Arguments were heard between 04-01-2002 to 08-01-2002. Thereafter the prosecution had filed an application under Section 311 of the Code of criminal Procedure on 11-01-2002 vide Ex. 71, which was allowed and the aforesaid two witnesses have been recalled for their further re-examination. ( 3 ) MR. MARDIKAR, learned counsel, for the petitioner contended that Nalini (P. W. 3) had clearly stated in her examination-in-chief which was recorded on 19-06-2001 as under: "thereafter the quack asked me for milk powder, some sugar, water which I gave him. The quack then collected some milk powder and sugar in a cup, mixed it with water and then added to it some powder he had with him in a small container. Having mixed the contents, he required my husband to consume the same. "mr. Mardikar, learned counsel, contended that in view of the admission given by Nalini in her cross-examination it is clear that the aforesaid fact amounts to omission and contradiction and now the prosecution wants to nullify the effect of this contradiction by recalling Nalini for re-examination and the prosecution wants to fill up the lacunae in the prosecution case, which ought not to have been allowed by the learned Sessions Judge. He contended that it should be borne in mind that the aid of Section 311 should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for just decision of the case and it must be used judicially and not capriciously or arbitrarily because 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 filling up lacunae 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 retrial or to change the nature of the case against either of the parties. In support of this submission, he relied on the decision of this Court in the case of R. N. Kakkar Vs. Hanif Gafoor Naviwala 1996 Cri. LJ. 365 : [1996 (2) ALL MR 466] and also on the decision of the Apex Court in the case of Mohanlal Vs. Union of India - AIR 1991 SC 1346 . ( 4 ) THE learned A. P. P. supported the impugned order passed by the learned Additional sessions Judge by which Nalini and P. S. I. Phundkar have been re-called for re- examination. He contended that both the witnesses are required to be re-examined in view of the fact that Nalini had made certain statement before police at the time of recording of her statement. When the evidence of Nalini was recorded in the Court, the Prosecutor did not put the questions to her in order to clear the ambiguity in relation to the statement which has been recorded by the police during the course of investigation. He, therefore contended that the mistakes or laches in conducting the case by the Public Prosecutor should not be understood to mean lacuna in prosecution case. In support of these contentions, he relied on the decision of the Apex Court in Rajendra Prasad vs. Narcotic Cell, through its Officer-in-charge, Delhi - AIR 1999 SC 2292 : [2000 ALL MR (Cri) 1880 (S. C.)]. In support of these contentions, he relied on the decision of the Apex Court in Rajendra Prasad vs. Narcotic Cell, through its Officer-in-charge, Delhi - AIR 1999 SC 2292 : [2000 ALL MR (Cri) 1880 (S. C.)]. ( 5 ) THIS Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. It is necessary to reproduce Section 311 of the code of Criminal Procedure, which reads thus: "311. Power to summon material witness or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. " ( 6 ) THIS section is manifestly in two parts. The word used in the first part is "may" while the second part used the word "shall". The first part gives purely discretionary authority to the Criminal Court and enables it at any stage of trial or other proceeding under the Code, (a) to summon any one as a witness; or (b) to examine any person present in the court; (c) or to recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the Court to take any of the aforementioned steps if the new evidence appears to be essential to the just decision of the case. The present case falls within the first part wherein the word used is "may" and, therefore, the Court is required to exercise the discretion for calling any witness for examination or re-examination, judiciously. ( 7 ) IN the present case, it is not in dispute that the evidence of Nalini (P. W. 3) was recorded on 19-06-2001 wherein in the examination-in-chief she has stated that "thereafter the quack asked me for milk powder, some sugar, water, which I gave him. The quack then collected some milk powder and sugar in a cup, mixed it with water and then added to it some powder he had with him in small container. Having mixed the contents, he required my husband to consume the same. The quack then collected some milk powder and sugar in a cup, mixed it with water and then added to it some powder he had with him in small container. Having mixed the contents, he required my husband to consume the same. After my husband consumed the preparation made by the quack, he made another such preparation for me and asked me to consume which I did. " ( 8 ) WHILE cross-examining this witness by the defence, it has been brought on record that "i did not tell police at the time of my statement that the quack had asked me for milk powder, sugar and some water which I gave him and he having made preparation therefrom gave it to my husband for consumption. (I again say that the preparation by the quack was given to my husband by him for consumption, was told by me before police. I again say that I did not state so before police)". ( 9 ) WHAT is interesting to note is that it is not in dispute that Nalini had made categorical statement before police that the quack had prepared the medicine in milk and then asked Nalini and her deceased husband to consume the same. The learned Sessions judge has made observation in para 5 of his order that "perusal of her evidence before the court and particularly the cross-examination as stated in foregoing paragraph and comparison of the same with her police statement, thus shows that preparation of medicine in milk by the quack and then asking the witness P. W. 3 nalini and her deceased husband Madhukar to consume the same by the said quack is categorically mentioned in the police statement of P. W. 3 Nalini. However, when the evidence was recorded by my learned predecessor on 19-06-2001, P. W. 3 Nalini might be due to long gap of time gave inconsistent admission about narrating these facts to police and then again saying that she had not stated same to police. However, when the evidence was recorded by my learned predecessor on 19-06-2001, P. W. 3 Nalini might be due to long gap of time gave inconsistent admission about narrating these facts to police and then again saying that she had not stated same to police. " ( 10 ) ON close scrutiny of the material that has been brought in the cross-examination of P. W. 3 Nalini, it would reveal that the defence wanted to prove the omission which is said to be amounting to contradiction and this Court is of the considered view that while proving such omission or contradiction, her attention ought to have been invited to the police statement by the learned defence counsel himself, which has been omitted by him to do so and, in such circumstances, it is not possible to accept that the learned Sessions Judge did not use his discretion in a judicious manner for recalling nalini for her re-examination on that point and for this limited extent. If a witness, without an extract from his police statement being read out to him, were to be told in the witness-box that he had not made a certain statement before the police, he would assume that might be so. It would mislead the witness. But that would not legally prove that the witness had not in fact made that statement before the police. The witness might be certain in his mind that he stated a particular fact before the police and might wonder when he is told in the witness- box without an extract from his police statement being read out to him, that he had not stated so. The correct and the proper way of proving a contradiction or omission is to ask a Sub- inspector about it in his evidence as to whether a certain statement was made before him by a witness. If such a procedure is not adopted, as it invariably ought to be, then, in any event, unless the record shows, by a Judge making a note about it, that the police statement of the witness was read out to him and his attention was drawn to the non-existence of a certain statement therein, it could not be said that there was proof that in fact the statement concerned was not made by the witness. A serious defect and some injustice to the witness are likely to be caused if an omission is allowed to go on record, and what the witness actually stated before the Court or the Investigating Officer is not brought on the record of the case. When, therefore, such an omission is brought on record in the cross-examination of a witness, the public prosecutor, and failing him, the Court, must put questions to the witness in re- examination to bring on record what the witness actually stated before the police. It may be mentioned that no prejudice would be caused to the petitioner/accused since he would get an opportunity to cross-examine Nalini after her re-examination and, therefore, this Court does not find any merit in the contention of the learned counsel for the accused that the prosecution wants to fill up the lacunae left by it and the same would cause serious prejudice to the defence of the accused and will give unfair advantage to the prosecution. In such circumstances, the decision of this Court in R. N. Kakkar's case 1996 Cri. L. J. 365 : 1996 (2) ALL MR 466 cited supra, is of no assistance to the counsel for the accused. In the result, it is obvious that there is no merit in the present application which is dismissed. Application dismissed.