JUDGMENT : Fair trial is the main object of criminal procedure and it is the duty of every court to ensure that such fairness is neither hampered nor threatened. It entails interest of the accused, the victim and the society, and as has been held by the Apex Court in Natasha Singh v. CBI, (2013) 5 SCC 741 (2 Judge Bench) it includes grant of fair and proper opportunities to all concerned, for fair trial is not only a constitutional but a human right. 2. Free and fair trial is a sine qua non of Article 21 of the Constitution. Any hindrance or obstruction would be violative of Article 14. Denial of a fair trial is as much an injustice to the accused as is to the victim and the society. It necessarily requires a trial before an impartial Judge, a fair prosecutor and in an atmosphere of judicial calm. Since the object of trial is to mete out justice and convict the guilty and protect the innocent, trial should be a search for the truth and not about over technicalities and must be conducted under such rules as would protect the innocent and punish the guilty. Justice should not only be done but should be seemed to have been done to the innocent. This is what the Apex Court reiterated in State of Haryana v. Ram Mehar and Ors., (2016) 8 SCC 762 (2 Judge Bench). 3. Justice, Krishnaiyer, J in Maneka Sanjay Gandhi and Anr. v. Rani Jethmalani, (1979) 4 SCC 167 (2 Judge Bench) observed that assurance of a fair trial is the first imperative of dispensation of justice. Also referring to Ram Chander v. State of Haryana,(1981) 3 SCC 191 (2 Judge Bench) and Nellore v. Insha Ramana Reddy, 1972 Crl.L.J 1485 (2 Judge Bench) it was observed that “every criminal trial is a voyage of discovery in which truth is the quest, it is the duty of a presiding Judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice.” 4. That assurance of fair trial is a necessary concomitant of rule of law stands reiterated by the Apex Court in Vinod Kumar v. State of Punjab, (2015) 3 SCC 220 (2 Judge Bench) which reads as follows : “3. That assurance of fair trial is a necessary concomitant of rule of law stands reiterated by the Apex Court in Vinod Kumar v. State of Punjab, (2015) 3 SCC 220 (2 Judge Bench) which reads as follows : “3. The narration of the sad chronology shocks the judicial conscience and gravitates the mind to pose a question, is it justified for any conscientious trial Judge to ignore the statutory command, not recognize "the felt necessities of time" and remain impervious to the cry of the collective asking for justice or give an indecent and uncalled for burial to the conception of trial, totally ostracizing the concept that a civilized and orderly society thrives on rule of law which includes "fair trial" for the accused as well as the prosecution.” 5. Rejection of the prosecutors request for recalling the prosecutrix as a witness for her re-examination, more so at her behest, has warranted this Court to revisit the aforesaid principles of fair trial – an indispensible tool of criminal justice system. 6. On 27th June, 2016 prosecutrix got registered a complaint against the accused under Sections 342, 376 and 506 IPC at West Agartala Women Police Station being FIR No.2016 WAW 052. Her multiple statements including the one under Section 164 Cr.P.C led the investigator to file the charge sheet, in relation to which, the accused were put to trial for having committed offences under Sections 342, 376 and 506 IPC against accused Panna Ahamed and Section 212 IPC against the other two accused namely Dipak Das and Gautam Das. 7. On 4th June, 2018, immediately after part-completion of cross-examination of her testimony, prosecutrix, through the Public Prosecutor expressed her desire of appointing another lawyer. As such, matter was adjourned. Undisputedly, State took a decision to change the Public Prosecutor, entrusting the brief to a Special Public Prosecutor, who without much delay, filed an application under Section 311 of Cr.P.C seeking re-examination of the prosecutrix necessarily required for just decision of the case. Necessity thereof, stands assigned in Paras 2 and 3 of the application which read as under: “2. In this regard the prosecution humbly submits that the wearing apparels of the victim and one bed cover recovered from the scene of crime need to prove by her which were left out earlier. Necessity thereof, stands assigned in Paras 2 and 3 of the application which read as under: “2. In this regard the prosecution humbly submits that the wearing apparels of the victim and one bed cover recovered from the scene of crime need to prove by her which were left out earlier. In this regard the signatures of the victim need to be proved on the two seizure lists dated 27.6.2016. Also her signature needs to be proved on the medical consent form. 3. Further there is ambiguity in her evidence regarding her standing on sofa and trying to open the door at page 1 of her evidence. Also at 5th 6th and 7th page of her evidence dated 04.06.18 there are certain explanations need to be taken regarding biting by the A/p, availability of phone no of the A/p, regarding her resistance and kicking at the time of incident, regarding slap given by the A/p, and she being abused by the A/p in slang language and so on.” 8. The trial Judge, vide impugned order dated 11th July, 2018 allowed the application qua averments made in Para- 2 (supra) but rejected the prayer relating to Para-3 (supra), holding that “there is no ambiguities in the evidence regarding the facts as pointed out in Para-3 of petition.” While arriving at such conclusion, the court relied upon the decisions rendered by the Apex Court in Rammi Alias Rameshwar v. State of M.P, (1999) 8 SCC 649 (2 Judge Bench) and Zahira Habibullah Sheikh and Anr. v. State of Gujarat & Anr., (2004) 4 SCC 158 (2 Judge Bench). 9. At this juncture, it be only observed that we are dealing with the case of a crime against women. FIR was registered on 27th June, 2016; challan was presented on 13th July, 2016 and charges framed on 9th August, 2016. Prosecutrix was examined on two dates, i.e. on 4th June, 2018 and 10th June, 2018. On the second date, she expressed her desire of engaging her counsel. Without delay, on 11th July, 2018 itself, an application in question was filed and a Special Public Prosecutor engaged who argued the matter and same day such application stood rejected. 10. Section 311 of Cr.P.C reads as under : “311. Power to summon material witness, or examine person present. Without delay, on 11th July, 2018 itself, an application in question was filed and a Special Public Prosecutor engaged who argued the matter and same day such application stood rejected. 10. Section 311 of Cr.P.C reads as under : “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.” 11. Here the term ‘witness” would mean a person who is capable of providing information by way of deposing as regards relevant facts, via an oral statement, or a statement in writing, made or given in a court or otherwise. [See: Madhu Alias Madhuranatha and Anr. v. State of Karnataka, (2014) 12 SCC 419 (2 Judge Bench)]. 12. It is a settled principle of law that a criminal case is built on the edifice of evidence, admissible in law, direct or circumstantial. The Apex Court in Swaran Singh v. State of Punjab, (2001) SCC (Cri) 190 (2 Judge Bench) has expressed the hardships through which a witness undergoes during trial. The ‘need’, ‘significance’ and ‘importance’ of the witnesses stand highlighted by the Apex Court, so also the reasons preventing the witness from staying away from participation and one of the reasons being the malady in the system. The Court highlighted the problem in the following term: “A witness in a criminal trial may come from a far-off place to find the case adjourned. He has to come to the court many times and at what cost to his own self and his family is not difficult to fathom. It has become more or less a fashion to have a criminal case adjourned again and again till the witness tires and gives up. It is the game of unscrupulous lawyers to get adjournments for one excuse or the other till a witness is won over or is tired. Not only is a witness threatened, he is abducted, he is maimed, he is done away with, or even bribed. There is no protection for him. It is the game of unscrupulous lawyers to get adjournments for one excuse or the other till a witness is won over or is tired. Not only is a witness threatened, he is abducted, he is maimed, he is done away with, or even bribed. There is no protection for him. In adjourning the matter without any valid cause a court unwittingly becomes party to miscarriage of justice. A witness is then got treated with respect in the court. He is pushed out from the crowded courtroom by the peon.” 13. The object of trial is only to unearth the truth, for failure to do the same would result into miscarriage of justice and negation of rule of law; violation and infringement of Constitutional obligation, duty and a right, more so by the stakeholders engaged in the process be it the Court, investigator, prosecutor or a defence counsel. 14. The Court now proceeds to examine the extent of and the manner of power, the court can exercise under Section 311 Cr.P.C. 15. Taking note of its earlier decision rendered in Jamatraj Kewalji Govani v. State of Maharashtra, AIR 1968 Supreme Court 178 (3 Judge Bench); Mohanlal Shamji Soni v. Union of India and Anr., 1991 Supp.(1) SCC 271 (2 Judge Bench), the Apex Court in Rajaram Prasad Yadav v. State of Bihar and Anr., (2013) 14 SCC 461 (2 Judge Bench) culled out the following principles with regard thereto : “17. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts : 17.1. Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case? 17.2. The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated. 17.3. If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and reexamine any such person. 17.4. 17.3. If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and reexamine any such person. 17.4. The exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case. 17.5. The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice. 17.6. The wide discretionary power should be exercised judiciously and not arbitrarily. 17.7. The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case. 17.8. The object of Section 311 Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision. 17.9. The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered. 17.10. Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. 17.11. The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results. 17.12. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results. 17.12. The additional evidence must not be received as a disguise or to change the nature of the case against any of the party. 17.13. The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party. 17.14. The power under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.” (Emphasis supplied). 16. In Rajaram (supra) the Apex Court held that Section 311 Cr.P.C. would show that (a) widest of the powers have been invested with the Courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. (b) A reading of the provision shows that the expression “any” has been used as a pre-fix to “court”, “inquiry”, “trial”, “other proceeding”, “person as a witness”, “person in attendance though not summoned as a witness”, and “person already examined”. (c) reading of Section 311 Cr.P.C. and Section 138 Evidence Act, insofar as it comes to the question of a criminal trial, the order of re-examination at the desire of any person under Section 138, will have to necessarily to be in consonance with the prescription contained in Section 311 Cr.P.C. (d) Insofar as recalling and reexamination of any person already examined, the Court must necessarily consider and ensure that such recall and reexamination of any person, appears in the view of the Court to be essential for the just decision of the case. 17. 17. In Ram Mehar (supra) the Court emphatically pointed out that for exercising the power under Section 311 Cr.P.C., case must, arouse judicial conscience. 18. Since the trial court led emphasis on the decisions rendered in Rammi (supra) and Jahira (supra), the court only reminds the following principle laid down in former : "17. There is an erroneous impression that re-examination should be confined to clarification of ambiguities which have been brought down in cross-examination. No doubt, ambiguities can be resolved through re-examination. But that is not the only function of the re-examiner. If the party who called the witness feels that explanation is required for any matter referred to in cross-examination he has the liberty to put any question in re-examination to get the explanation. The Public Prosecutor should formulate his questions for that purpose. Explanation may be required either when the ambiguity remains regarding any answer elicited during cross-examination or even otherwise. If the Public Prosecutor feels that certain answers require more elucidation from the witness he has the freedom and the right to put such questions as he deems necessary for that purpose, subject of course to the control of the court in accordance with the other provisions. But the court cannot direct him to confine his questions to ambiguities alone which arose in cross-examination. 18. Even if the Public Prosecutor feels that new matters should be elicited from the witness he can do so, in which case the only requirement is that he must secure permission of the court. If the court thinks that such new matters are necessary for proving any material fact, courts must be liberal in granting permission to put necessary questions". (Emphasis supplied). 19. And in the latter [Zahira (supra)] that: “46. Ultimately, as noted above, ad nauseam the duty of the Court is to arrive at the truth and sub-serve the ends of justice. Section 311 of the Code does not confer any party any right to examine, cross-examine and reexamine any witness. This is a power given to the Court not to be merely exercised at the bidding of any one party/person but the powers conferred and discretion vested are to prevent any irretrievable or immeasurable damage to the cause of society, public interest and miscarriage of justice. This is a power given to the Court not to be merely exercised at the bidding of any one party/person but the powers conferred and discretion vested are to prevent any irretrievable or immeasurable damage to the cause of society, public interest and miscarriage of justice. Recourse may be had by Courts to power under this section only for the purpose of discovering relevant facts or obtaining proper proof of such facts as are necessary to arrive at a just decision in the case.” Unfortunately such principles stood ignored and the ratio not correctly appreciated and applied. 20. Whether witness is required to be recalled or not, is dependent upon the prevalent facts and circumstances, emanating from the record, but what is important is that power must be exercised in view of the expression ‘shall’ if it is essential for just decision of the case. Indeed, such power which is wide must be exercised with circumspection for wider the power, greater the responsibility upon the Court. It cannot and should not be allowed to prejudice the accused or only fill up the lacunae and as has been held in Manan Shheikh v. State of West Bengal, (2014) 133 SCC 59, such power can be exercised in relation to a particular case with regard to a particular witness on more than one occasion. 21. Reiteratingly, it is pointed out that it is the duty of the Court to not only do justice but ensure it is so being done. In fact, the Apex Court in Mohanlal (supra) observed that if judgments are delivered on “inchoate, inconclusive and speculative presentation of facts”, ends of justice would be defeated. The Court in the very same decision, also took note of the corresponding power under the provisions of Cr.P.C and the other statutes, including Section 165 of the Indian Evidence Act. 22. Aforesaid principles when applied to the instant facts leads to the only irresistible conclusion that the view taken by the trial court, that there is no ambiguity in the evidence regarding the facts as pointed out in Para-3 of the petition, is factually incorrect, not born out from the record, unreasonable, illogical and perverse. The principles of law laid down in Rammi (supra) & Zahira (supra) were not correctly appreciated and applied. The principles of law laid down in Rammi (supra) & Zahira (supra) were not correctly appreciated and applied. The trial court failed to notice that during investigation, statement of the prosecutrix was got recorded on more than one occasion. In view of her statement, she ought to have been declared as a hostile witness or re-examined seeking clarification and elucidation. 23. To illustrate the point, learned Public Prosecutor points at least four fact situation issues which required elucidation/clarifications; (a) at the time when prosecutrix tried to open the door whether she was standing on the ‘sofa’ or not; (b) whether the accused had given her bite marks or not; (c) did the prosecutrix know the phone number of the accused (d) did the prosecutrix resist the advances of the accused and the resultant reaction, if any, of the accused slapping her. 24. With each one of these facts, one finds that if only the court had been vigilant, the ambiguities which crept in her statements, so recorded on 4th June, 2018 and 10th July, 2018 could have been avoided. Her statement that she was standing on the sofa (page-30) required to be explained in view of her previous statement (Page-24) where she stated to have got up from the sofa. She was not standing on the sofa. Similarly, with regard to the bite marks, her statement at Page-34 was required to be explained in view of her previous statement at Page-21. On the issue of accused having called her on phone (Page-35), her statement required clarification, more so, in view of her previous statement (Page-24). On the issue of resistance of the overt acts and the force used by the accused, her statement at Page-36 required to be clarified in view of her previous statement at Page-21 and Page-25. It certainly cannot be said that there is no ambiguity. After all, we are dealing with a case of a crime against woman and the prosecutrix, immediately, without any delay, perhaps finding the professional conduct of Public Prosecutor to be desirable, in despair, sought to avail services of a lawyer of her choice. Promptly, considering the gravity and the nature of the alleged crime, State acceded to such requirement, by appointing a Special Public Prosecutor. Promptly, considering the gravity and the nature of the alleged crime, State acceded to such requirement, by appointing a Special Public Prosecutor. It is in this backdrop, Court finds the principles culled out by the Apex Court in Rajaram(supra); Rammi(supra) as also Zahira(supra) to be squarely applicable in the present case. 25. The Court is duty bound to unearth the truth. If the witness is recalled, no prejudice much less serious prejudice would be caused to the accused. Prosecution is not trying to fill up the lacuna. In fact, material for re-examining the witness is already on record. Fault in ignoring the same is certainly not that of the prosecution, it is of the people manning the system of Administration of Justice. In fact, with the prosecutrix having expressed her reservation with regard to the manner in which trial was conducted, the court ought not to have allowed further recording of her statement. Failure to do so, has only resulted into negation of rule of law, violation of Constitution and human right. 26. The court lost sight of the fact that the prosecutrix was trying to help the prosecution, as also the Court in unearthing the truth and nothing but the whole truth. All that she wanted was clearance of ambiguities arisen during the course of her cross-examination. Certainly, it was not an act of an afterthought. She is not a trained witness or of professional lawyer, conversant with the procedures of trial. Perhaps sensing that truth was being suppressed or compromised, she desired change of counsel and this only, to prevent miscarriage of justice. It is here one finds the observations made by the Apex Court in Natasha Singh (supra), Ram Mehar (supra), Rani Jethmalani (supra) and Maneka Sanjay Gandhi (supra) to apply in equal force. In the attending facts the elucidation of certain answers was necessarily required, without prejudicing the cause of the accused. 27. With vehemence Mr. P K Biswas, learned Sr. Advocate, argues that the Spl. Public Prosecutor cannot put a leading question to the witness. In the attending facts the elucidation of certain answers was necessarily required, without prejudicing the cause of the accused. 27. With vehemence Mr. P K Biswas, learned Sr. Advocate, argues that the Spl. Public Prosecutor cannot put a leading question to the witness. Well, this cannot be a reason to disallow the application, for whether a question put to the witness is leading or not and is permissible, in view of Section 137, 138 & 141 of the Evidence Act or not, is for the trial court to consider during trial and not a factor for consideration or a requirement under Section 311 of Cr. P.C. 28. It is, under these circumstances, the impugned order dated 11th July, 2018 passed by learned Additional Sessions Judge, Fast Track Court, West Tripura, Agartala, is hereby quashed and set aside. The application dated 11th July, 2018 filed by the prosecution is allowed. 29. Parties shall appear before the trial court on 17th June, 2019 when a date shall be fixed by the trial court for reexamination of the prosecutrix (PW.1), which needless to mention shall be carried out promptly in accordance with law. 30. It is seen that the case relates to the year 2016 and as such hearing is expedited. The trial court shall ensure that all trial takes place, subject to the calendar of the Court, on a day to day basis. Parties shall fully co-operate and not take any unnecessary adjournment. It is made clear that any observation made herein, shall not be construed to be an expression/opinion on the merits of the case, for each case has to be dealt with, on its own merits and the trial Court shall decide the matter, uninfluenced of the same. Record be sent back immediately.