ORDER : RAMALINGAM SUDHAKAR, J. 1. Heard Ms. Sapana Kh., learned counsel for the petitioner; and Mr. Athouba Khaidem, learned Addl. P.P. 2. This criminal petition has been filed to set aside the order dated 02.06.2017 passed by the Sessions Judge, Imphal East, in Cril. Misc. Case No. 37 of 2017 arising out of Sessions Trial No. 4/2010/44/2013. The petitioner is the accused in the Sessions Trial. The allegation in the case is that the petitioner is a rifleman in the India Reserve Batalion (IRB), who was accused in a case of murder of one Nandalal Singh in the intervening night of 21.05.2004 and 22.05.2004. 3. The petitioner has been arrayed as accused No. 4. The trial is proceeding before the learned Sessions Judge, Imphal East. On 06.02.2017, the accused Angom Indrajit Singh, alias Kebi, S/o of Angom Chourajit Singh of Khurai Thagjam Leikai was examined as Defence Witness No. 1 and he deposed as follows:- "I joined as a Rifleman in December, 2001 and initially posted at 3rd IRB. I am at present posted at 6th IRB at Pangei. I was attached to Imphal East Commando for 3 months just after taking oath. Thereafter, I went to North East Police Academy (NEPA) for training for 45 days. Thereafter, I was attached to Thoubal Police Commando from 2003 to 2004. In the year 2004, the date was 27th but I cannot remember the month, at about 10-10:30 a.m., the Addl. S.P. Imphal East and SDPO, Imphal East came to Thoubal P.S. and took permission from the S.P. Thoubal for taking me to Imphal East P.S. for a talk. Thereafter, the S.P. Thoubal asked me to go with the Addl. S.P. Imphal East and SDPO, Imphal East to Imphal East Police Station. Accordingly, we proceeded to the Imphal East P.S. In the said station, I was asked to sit in a room and told me that the talk will place in the evening. In the evening, my eyes were covered with a cloth and I was taken to another room. Then in there, S.I. Inaobi, I.O. of the case asked me whether I was involved in the killing of a person who was found dead at Khurai Thoidingjam Leikai, near Babu Hotel. I told him that I was not at all involved but I was at my Thoubal Unit. Thereafter, I was beaten up and kept in the room overnight. Then in there, S.I. Inaobi, I.O. of the case asked me whether I was involved in the killing of a person who was found dead at Khurai Thoidingjam Leikai, near Babu Hotel. I told him that I was not at all involved but I was at my Thoubal Unit. Thereafter, I was beaten up and kept in the room overnight. On the next day, I was taken out of the room and kept in a lock up. I was detained in the lock up for about a week. On 21st and 22nd May, 2004, I was at my Unit, Thoubal. I along with Hilary and Mohindro from Thoubal Wangma Taba were planning to go to the wedding of our Commander, Pushpendra. However, due to failure to arrange a vehicle, we spent the night at the house of Oinam Hilary, whose hose is located adjacent to S.P., Thoubal's Office and had dinner at the house after cooking a duck. We starting cooking the duck at about 7.30 p.m. and had dinner at around 11.30 p.m.-12.00 a.m. After finishing dinner, we came out of the house of Hilary and returned to our barrack. At that period of time, the arms and ammunition issued to me was a Self Loading Rifle (SLR), I am not issued any other arm other than the said SLR. The driver, Thoubal CDO was allotted a 9mm pistol while Havildar was issued SMC (Carbine). A total of 11 rounds of ammunition were issued to the driver, Thoubal CDO for the said 9mm pistol. An arms box is issued for each mobile team. Whenever we finish our duty, we kept the arms issued to us in the said arms box of our respective team. Out of 7 accused in the dock, I know three of them namely, Meinam Bipin, Thangjam Ajit and Leimapokpam Ashutosh. All of them are from Khurai Thangjam Leikai. I, however, do not know the rest. I do not know anything about the case and pray the Court to the justice in the case." Thereafter, on 12.05.2017, he was cross-examined by the additional P.P. and he has stated as follows:- "As a security personnel, I can operate/use weapons namely SLR, AK rifles, 303 rifles, LMG, SMG carbines, 2 inch mortar, JF rifles and pistols. I did not use/hold pistols after training. In March/April 2003, I was posted at Thoubal Commando barrack. I did not use/hold pistols after training. In March/April 2003, I was posted at Thoubal Commando barrack. I used to sleep in the barrack and the barrack had three rooms. The rooms are not locked. The arms are kept in mobile arm boxes provided to golf 38. The keys of the arm boxes are held by Hillary, rifleman. We used to take weapons from the arm boxes when the time of departure for operation. I know one Angom Dijen Singh, a pan shop owner who is a cousin brother of our "Sagei". I did not visit the said pan shop of Angom Dijen Singh on 20/21 May 2004. On that day, I was at Thoubal Commando unit. I was in judicial custody for about six months in c/w the alleged murder case at Khurai Sajor Leikai. I never visited Khurai Sajor Leikai in the past. I heard that Nandalal was death due to bullet injury at Khurai through police when I was picked up and kept in police custody. I do not know Rosy, Medhen and Bijoy and also Rajen. There is no instance of me showing of my weapons to anyone. My commander Pushpendra got married on 21/05/2004. I deny the suggestion that on 21st and 22nd May, 2004, I was at my unit, Thoubal. I along with Hilary and Mohindro from Thoubal Wangma Taba were planning to go to the wedding of our Commander, Pushpendra. However, due to failure to arrange a vehicle, we spent the night at the house of Oinam Hilary, whose house is located adjacent to S.P. Thoubal's office and had dinner at the house after cooking a duck. We started cooking the duck at about 7:30 pm and had dinner at about 11:30 pm-12:30 a.m." 4. Thereafter, an application was filed being Cril. Misc. Case No. 37 of 2017 for allowing re-examination of Defence Witness No. 1, the petitioner herein stating that though he has given correct facts of the incident, by oversight, certain relevant factors in relation to his presence at Thoubal on the intervening night of 21 and 22 May, 2004 along with his colleague till the morning drill at Thoubal, was not mentioned. Therefore, he stated that grave prejudice will be caused to him because of the learned counsel who appeared for the Defence Witness failed to examine the witness in the proper manner to elicit the correct facts to prove that the petitioner/accused is not involved in the offence. He pleaded that he is a rifleman without much knowledge of law and Court proceedings and because of his advocate's inability to elicit the correct facts he should not suffer the consequence of the criminal trial or a conviction. He further pleaded that in exercise of the power under section 311 of the Code of Criminal Procedure, 1973, he should have been permitted to be recalled and re-examined. 5. This request of the accused/petitioner was rejected by the Trial Court on 02.06.2017 stating as follows : "The reasons/grounds taken by the petitioner failed to state the Specific portion for which the re-examination of the petition is required as such the failure to state the specific part to recall and re-examine accused fail to convince the court that his re-examination appears to it to be essential to the just decision of the case. In the circumstances this Court have the opinion that the petitioner failed to convince the Court to invoke the discretionary power given to the Court. Accordingly with the above discussion and reasoning the present application filed by the accused/petitioner is rejected." The Court came to the view that it was not convinced about the application to invoke the power under section 311 of the Code of Criminal Procedure, 1973 and consequently, the present petition has been filed. 6. Ms. Sapana Kh., learned counsel for the petitioner has relied upon the decision of the Supreme Court in the case of Iddar & Ors. v. Aabida & Anr. reported in AIR 2007 SC 3029 to plead that the power under section 311 of the Code of Criminal Procedure, 1973 cast the duty of the Court to ensure the substantial justice is done to the parties concerned irrespective of the fact whether he is an accused or the victim and it includes the prosecution as well. Ms. reported in AIR 2007 SC 3029 to plead that the power under section 311 of the Code of Criminal Procedure, 1973 cast the duty of the Court to ensure the substantial justice is done to the parties concerned irrespective of the fact whether he is an accused or the victim and it includes the prosecution as well. Ms. Sapana Kh., learned counsel for the petitioner, to highlight this proposition that the Court should have exercised the discretion to allow the petitioner to be recalled and reexamined, has relied upon the aforesaid decision, more particularly para 9, 10, 11, 12 & 13 which are reproduced herein below: "9. In this context, reference may be made to Section 311 of the Code which reads as follows: "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." 10. The section is manifestly in two parts. Whereas the word used in the first part is "may", the second part uses "shall". In consequence, the first part gives purely discretionary authority to a Criminal Court and enables it at any stage of an enquiry, trial or proceeding under the Code : (a) to summon any one as a witness, or (b) to examine any person present in Court, or (c) 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 it essential to the just decision of the case. This is a supplementary provision enabling, and in certain circumstances imposing on the Court the duty of examining a material witness who would not be otherwise brought before it. It is couched 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 it should be exercised. It is couched 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 it should be exercised. It is not only the prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the Court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts. 11. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind. 12. As indicated above, the Section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation: it is, that the Court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. 12. As indicated above, the Section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation: it is, that the Court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court, sections 60, 64 and 91 of the Indian Evidence Act, 1872 (in short, 'Evidence Act') are based on this rule. The Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the Court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The Court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the Court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the Court may result in what is thought to be "filling of loopholes". That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not, must of course depend on the facts of each case, and has to be determined by the Presiding Judge. 13. The object of the Section 311 is to bring on record evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. If a witness called by Court gives evidence against the complainant he should be allowed an opportunity to cross-examine. The right to cross-examine a witness who is called by a Court arises not under the provision of Section 311, but under the Evidence Act which gives a party the right to cross-examine a witness who is not his own witness. Since a witness summoned by the Court could not be termed a witness of any particular party, the Court should give the right of cross-examination to the complainant. These aspects were highlighted in Jagat Rai v. State of Maharashtra AIR 1968 SC 178 ." 7. Mr. Athouba, learned Addl. Since a witness summoned by the Court could not be termed a witness of any particular party, the Court should give the right of cross-examination to the complainant. These aspects were highlighted in Jagat Rai v. State of Maharashtra AIR 1968 SC 178 ." 7. Mr. Athouba, learned Addl. P.P. appears for the State and relied upon the decision in the case of Smt. Chhanda Debbarma v. Keshab Banik, reported in 2005 CRI.L.J. 2503 to say that the accused/petitioner should not be allowed to use this provision to fill up the lacuna. In the present case, there is no dispute on that proposition as well. 8. In the present case, the accused/petitioner has maintained a particular stand in his examination-in-chief as well as cross-examination, as has been indicated in the deposition itself which has been extracted above. In the light of that position, he seeks to clarify the events which happened on intervening night of 21 & 22 May, 2004. Therefore, he seeks for recalling and re-examining in the light of his deposition already made. There appears to be no case of filling up any lacuna or loopholes. 9. Be that as it may, the power granted under section 311 of the Code of Criminal Procedure, 1973 can be exercised by the Court in a case where the petitioner/accused in the case seeks for substantial justice to lay his defence at the time of trial so that he should not be convicted on the certain errors committed by the learned counsel in not properly examining at the time of examination-in-chief. This plea of the petitioner is justified in terms of the Para 13 of the aforesaid judgment in the case of Iddar & Ors. v. Aabida & Anr. relied upon by the accused/petitioner which has been extracted above. 10. Consequently, the accused/petitioner in this case is entitled to benefit of section 311 of the Code of Criminal Procedure, 1973 and accordingly this petition is allowed. The Trial Court is directed to allow the petitioner to be recalled and re-examined on a particular date and cross-examined by the prosecution. 11. The petitioner/accused shall promptly appear before the Trial Court on 04.07.2018 as indicated by Ms. Sapana Kh., learned counsel for the petitioner, without seeking any adjournment. 12. This undertaking by the counsel for the petitioner is recorded. 11. The petitioner/accused shall promptly appear before the Trial Court on 04.07.2018 as indicated by Ms. Sapana Kh., learned counsel for the petitioner, without seeking any adjournment. 12. This undertaking by the counsel for the petitioner is recorded. If the petitioner/accused tries to delay his recall and reexamination for any reasons whatsoever, the relief granted in this petition shall not be available to the petitioner. 13. The petition stands disposed of accordingly.