JUDGMENT H.N. Sarma, J. 1. Challenging the legality ,validity and justifiability of the impugned order dated 13.7.2010 passed in Sessions Case No. 39(N)/09 by the learned Addl. District Sessions Judge, (FTC), Sankardev Nagar Hojai, the accused Petitioner has filed this revision petition under Section 401 of the CrPC. 2. Heard Mr. M. A. Sheikh, learned Counsel appearing for the accused/Petitioner. Also heard B. Gogoi, learned Addl. Public Prosecutor for the State of Assam and Mr. S. Rahman, learned Counsel appearing for the informant/victim. 3. The accused/Petitioner is facing trial of a sessions case filed by the Respondent No. 2, alleging commission of offence punishable Under Section 447/376 IPC, on the basis of a complaint filed by the Respondent No. 2. 4. Initially the complaint was filed in the court of the learned SDJM, Hojai and upon receipt of the complaint, the learned SDJM recorded the statements of the complainant and her witnesses under 202 Code of Criminal Procedure and upon perusal of the statements and having found that a prima facie case triable by the court of sessions has been made out, committed the case to the court of sessions for necessary trial. The learned Addl. Sessions Judge, FTC, Sankardev Nagar, Hojai, to whom the case was made over for trial, upon appearance of the parties and upon consideration of the materials on record framed charges against the Petitioner Under Section 447/376 IPC to which he denied and claimed to be tried. 5. During the course of trial prosecution examined five witnesses and after closer of the prosecution case the accused was examined under Section 313 CrPC, putting before him the circumstances that appeared against him which he denied. The accused declined to adduce any defence witness and the case was fixed for argument. At that stage an application Under Section311 Code of Criminal Procedure was filed on behalf of the complainant on 11.5.2010 praying for summoning the doctor who medically examined the complainant. It is pertinent to mention herein that on 24.6.2008 a medical certificate was submitted on behalf of the complainant before the court, which was issued by one Medical Officer, A. Alam (Lanka PHC Nagaon) who examined the complainant on 20.6.2008. The said certificate was accepted and brought on record by the learned trial judge to which no objection was raised by the defence. The said certificate was accepted and brought on record by the learned trial judge to which no objection was raised by the defence. The aforesaid application for calling upon examination of the doctor as PW in the case, was stiffly resisted by the Petitioner. However, the learned trial judge, vide impugned order dated 3.7.2010 refuting the objection of the Petitioner, allowed the application and passed an order to issue summon to the doctor to be examined in the case as a PW, which is the subject matter of challenge in the petition. 6. Challenging the impugned order Mr. Sheikh submits that the Petitioner at no point of time has disclosed that doctor A. Alam has medically examined her. There is also no mention about her medical examination either in her complaint petition or in her initial deposition or in her statement before the court. Accordingly, it is contended that the prayer has been made by the complainant only to harass the Petitioner. It is further contended that the power under Section 311 to call a witness for examination in a particular case is to be exercised by the court itself and not on the application filed by any party and in the instant case such a power having been exercised by the learned trial court on the prayer of the complainant, the same is an illegal exercise of power being devoid of jurisdiction. Further contention of the learned Counsel is that when the case has attained its final stage of argument the learned trial court ought not to have allowed the prayer of the complainant to call for further witnesses in support of the prosecution. 7. Mr. Gogoi, learned Addl. P.P. as well as S. Rahman, learned Counsel for the complainant resisting the submissions made by Mr. Sheikh and supporting the impugned order contended that the power under 311 Code of Criminal Procedure is a very wide and open to be exercised in appropriate cases and in the instant case, such power has been exercised by the learned trial judge in a bonafide manner for just decision of the case which requires no interference in exercise of the revisional jurisdiction. 8. The submissions of the learned Counsel received due attention of the Court. 9. 8. The submissions of the learned Counsel received due attention of the Court. 9. The short question that calls for decision in this revision petition is the scope and power of the learned court to summon a witness after closer of the prosecution and defence case, more particularly when such power is sought to be exercised by calling a witness who was not examined by prosecution under the proviso to Sub-Section 2 of S. 202 CrPC. 10. S. 311 of the Code of Criminal Procedure empowers any court to summon any person as a witness at any stage of enquiry or trial, provided it appears to the court that it is essential for just decision of the case under proviso to Sub-Section 2 of S. 202 Code of Criminal Procedure when it appears during the course of enquiry under Sub-Section 1 to Section 202 Code of Criminal Procedure that the offence complained of is triable exclusively by a court of sessions the magistrate shall call upon the complainant to produce all his witnesses and examine them on oath. Admittedly in the instant case such steps have been taken by the prosecution but the doctor who examined the victim was not examined at that stage. 11. Now turning to S. 311 of the Code of Criminal Procedure it is to be found that it empowers the power upon the court to summon any person as an witness at any stage of an enquiry or trial if such a course of action is required to be resorted for just decision of the case. 12. Interpreting S. 540(old) (new 311) of the Code of Criminal Procedure the Apex Court in the case reported in Jamatraj Kewali Govani v. State of Maharashtra speaking through Hon'ble M. Hidayatullah (J) AIR 1968 SC 178 held that the Section gives power to the court to summon a material witness or to examine a person present in court or to recall a witness already examined. It confers a wide discretion on the court to act as the exigencies of justice require. Another aspect of this power and complementary to it is to be found in Section 165of the Indian Evidence Act. At paragraph 10 of the judgment it is held as follows Section 540 is intended to be wide as the repealed use of the word 'any' throughout its length clearly indicates. The section is in two parts. Another aspect of this power and complementary to it is to be found in Section 165of the Indian Evidence Act. At paragraph 10 of the judgment it is held as follows Section 540 is intended to be wide as the repealed use of the word 'any' throughout its length clearly indicates. The section is in two parts. The first part gives a discretionary power but the latter part is mandatory. The use of the word 'may' in the first part and of the word 'shall' in the second firmly establishes this difference. Under the first part, which is permissive, the court may act in one of three ways: (a) summon any person as a witness, (b) examine any person present in court although not summoned, and (c) recall or re-examine a witness already examined. The second part is obligatory and compels the Court to act in these three ways or any one of them, if the just decision of the case demands it. As the section stands there is no limitation on the power of the Court arising from the stage to which the trial may have reached, provided the Curt is bona fide of the opinion that for the just decision of the case, the step must be taken. It is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution. There are, however, two aspects of the matter which must be distinctly kept apart. The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something suddenly and unexpectedly. This was laid down by Tindal, C.J. in words which are oft-quoted: There is no doubt that the general rule is that where the Crown begins its case like a Plaintiff in a civil suit, they cannot afterwards support their case by calling fresh witnesses, because they are met by certain evidence that contradicts it. They stand or fall by the evidence they have given. They stand or fall by the evidence they have given. They must close their case before the defence begins but if any matter arises ex improviso, which no human ingenuity can foresee, on the part of a Defendant in a civil suit, or a prisoner in a criminal case, there seems to me no reason why that matter which so arose ex improviso may not be answered by contrary evidence on the part of the Crown." [Reg. v. Frost(1840) 4 STT. (NS) 85at p. 86]. There is, however, the other aspect namely of the power of the Court which is to be exercised to reach a just decision. This is exercisable at any time and the Code of Criminal Procedure clearly so states. Indeed as stated by Avory, J, in Rex v. D. Harris (1927) 2 KB 587at p. 594: The cases of Reg. v. Chapman (1838) 8 C 558 and Reg v. Holden (1838) 8 C 606 establishes the proposition that the presiding judge at a criminal trial has the right to call a witness not called by either the prosecution or the defence, if in his opinion this course is necessary in the interests of justice. It is true that in none of the cases has any rule been laid down limiting the point in the proceedings at which the judge may exercise that right. However, the learned Judge points out that injustice is possible unless some limitation is put upon the exercise of that right and he adopts for that purpose the rule laid down by Tindal, C.J. in (1840) 4 STT (NS) 85even in those cases where a witness is called by the Judge after the case for the defence is closed, and states, "that the practice should be limited to a case where the matter arises ex improviso, which no human ingenuity can foresee, on the part of a prisoner, otherwise injustice would ensue" and cites the case of Reg v. Haynes ( 1859) 1 F & F 666 where Bramwell B. refused to allow fresh evidence to be gone into after the close of the whole case. In Dora Harris's case 1927 2 KB 587 five persons were tried, two for stealing and they pleaded guilty and three others for receiving who pleaded not guilty. The first two remained in the dock and the trial proceeded against the other three. In Dora Harris's case 1927 2 KB 587 five persons were tried, two for stealing and they pleaded guilty and three others for receiving who pleaded not guilty. The first two remained in the dock and the trial proceeded against the other three. They gave evidence on their own behalf and the prosecution case was not quite strong. The Recorder then asked one of the other two accused to give evidence and allowed the prisoner Dora against whom the evidence went to cross-examine him but did not ask Dora to enter the box again to contradict the new evidence. This was held by the Court of Criminal Appeal to be a wrong exercise of the power of the Court. It was an extreme example of the exercise of the power. 13. It is the duty and responsibility of the prosecution is to examine a material witness and in the affect of non compliance of such duty, the Apex Court in the case of Masalti v. State of Uttar Pradesh 1965 SC 202 laid down the law. The Apex Court speaking through Chief Justice Gajendragadkar held at paragraph 12 as follows In the present case, however, we are satisfied that there is no substance in the contention which Mr. Sawhney seeks to raise before us. It is not unknown that where serious offences like the present are committed and a large number of accused persons are tried, attempts are made either to terrorise or win over prosecution witnesses, and if the prosecutor honestly and bona fide believes that some of his witnesses have been won over, it would be unreasonable to insist that he must tender such witnesses before the Court. It is undoubtedly the duty of the prosecution to lay before the Court all material evidence available to it which is necessary for unfolding its case; but it would be unsound to lay down as a general rule that every witness must be examined even though his evidence may not be very material or even if it is known that he has been won over or terrorized. In such a case, it is always open to the defence to examine such witnesses as their witnesses and the Court can also call such witnesses in the box in the interest of justice under Section 540, Code of Criminal Procedure As we have already seen, the defence did not examined these witnesses and the Court, after due deliberation, refused to exercise its power under Section 540, Code of Criminal Procedure That is one aspect of the matter which we have to take into account. 14. The above scope and interpretation of Section 540/311 of the Code of Criminal Procedure was also approved by the Apex Court in the case of Mohanlal Shamji Soni v. Union of India and an Ors. 1991 1 CLJ 1521. The language and terms under which S. 311 Code of Criminal Procedure are articulated and as interpreted by the Apex Court, it cannot be said that the power provided under Section 311 is controlled by the proviso to Sub-Section 2 of S. 202 CrPC which means that in the event a witness is not examined by the Magistrate under the proviso Sub-Section 2 of Section 202 CrPC, such a witness can be summoned to the court by the trial judge if such a course of action is required to be resorted for the just decision of the case in exercise of power under Section 311 CrPC. 15. In the instant case although the medical certificate issued by the doctor was brought on record way back on 24.6.08 by passing a judicial order without any objection but the said doctor was not examined by prosecution. It is further to be noted herein that when a sessions case is initiated on the basis of a complaint the public prosecutor of the State has also a specific role to play in conducting the case. When the prosecutrix found that the doctor who examined her was not brought as witness she filed an application under Section 311 of the CrPC. The learned trial judge while dealing with the said application considered all the pros and cons of the matter and the objection raised by the accused Petitioner in all respect and according to the learned trial judge examination of the doctor A. Alam (Lanka PHC, Nagaon) is essentially required for just decision of the case. The learned trial judge while dealing with the said application considered all the pros and cons of the matter and the objection raised by the accused Petitioner in all respect and according to the learned trial judge examination of the doctor A. Alam (Lanka PHC, Nagaon) is essentially required for just decision of the case. It is more so considering the nature of the case as projected by the prosecution and the offence under which the Petitioner is charged. In passing the impugned order the learned trial judge has not committed any error, jurisdictional or otherwise, and the procedure has been adopted by the learned judge for just decision of the case in hand. 16. Considering the aforesaid facts and circumstances, I do not consider it to be a fit case where interference is called for by this Court to revise the impugned order as sought for. 17. Consequently, I do not find any merit in this revision petition and it stands dismissed. Interim order dated 13.8.2010 stands vacated. 18. The learned trial judge shall summon the doctor, A. Alam, the concerned Medical Officer, who examined the complainant and upon such examination the Petitioner would be entitled to cross examine him. It is further directed that after completion of examination of the doctor the Petitioner would be further subjected to examination under Section 311 Code of Criminal Procedure bringing the circumstances that against the Petitioner that might be revealed from the statement of the doctor and thereafter hear the final arguments and decide the case. Petition dismissed.