JUDGMENT : Heard Mr. A.M. Barbhuiya, learned counsel for the petitioner; Ms. S. Jahan, learned Additional Public Prosecutor for respondent no. 1, State of Assam and Ms. S.B. Choudhury, learned counsel for respondent no. 2. 2. The petitioner, in this criminal petition filed under Section 482 read with Section 397/401, Code of Criminal Procedure, 1973 (‘the code’ and/or ‘the CrPC’, for short), has assailed an order dated 28.05.2019 passed by the Court of learned Sessions Judge, Hailakandi (‘the revisional court’, for short) in Criminal Revision No. 43/2018, whereby, the learned revisional court had set aside an order dated 23.08.2018 passed by the Court of learned Judicial Magistrate, First Class, Hailakandi (‘the trial court’, for short) in G.R. Case no. 700/2013. The revisional court, thereby had allowed further cross-examination of 2 (two) defence witnesses – D.W.1 and D.W.2 -on payment of cost of Rs. 500/-to each of the said 2 (two) witnesses. 3. The facts which are necessary can be stated, in a nutshell, as follows :- 3.1. The respondent no. 2 (hereinafter referred to as ‘the informant’, for easy reference) is the wife of the petitioner (hereinafter referred to as ‘the accused’). The informant alleging acts of cruelty against her by the accused, had lodged a First Information Report (FIR). On receipt of the FIR, a police case was registered and the matter was investigated into. Correspondingly, G.R. Case no. 700/2013 has been registered. On completion of investigation, the Investigating Officer had submitted a charge sheet in due course as per Section 173, CrPC against the accused finding materials to proceed against him for the offence under Section 498A, Indian Penal Code (IPC). On submission of the charge sheet, the learned trial court taking cognizance of the offence, had issued summons for appearance of the accused. On appearance of the accused, a charge under Section 498A, Indian Penal Code (IPC) was framed against the accused and after explaining the charge to the accused, the case proceeded for trial. 3.2. It is submitted by the parties that the trial, on behalf of the State, was conducted by the learned Assistant Public Prosecutor. In due course, the prosecution examined their witnesses and they were duly cross-examined by the defence. After closure of the prosecution evidence, the accused was examined under Section 313, CrPC and when asked, the accused expressed his desire to adduce defence evidence. In due course, the prosecution examined their witnesses and they were duly cross-examined by the defence. After closure of the prosecution evidence, the accused was examined under Section 313, CrPC and when asked, the accused expressed his desire to adduce defence evidence. To disprove the charge made against him, the defence examined 2 (two) witnesses as D.W.1 and D.W.2. The accused examined himself as D.W.1. Both the defence witnesses – D.W.1 and D.W.2 – were examined and cross-examined on 02.06.2018 and after their cross-examination, they were discharged. Having informed the learned trial court by the defence that they did not want to adduce any further evidence, the evidence of the defence side was closed by the learned trial court on 02.06.2018 and the case was posted for argument on 21.06.2018. 3.3. When the case was posted for argument, the informant filed a petition being Petition no. 2345/2018, before the learned trial court with the prayer for allowing the learned counsel, engaged by the informant, to assist the prosecution side. As the petition was forwarded through the learned Assistant Public Prosecutor who expressed his no objection, the said petition was allowed by the learned trial court on 02.08.2018 and the case was posted for argument on 23.08.2018. 3.4. It was on 23.08.2018, a petition being Petition no. 2428/2018, came to be filed by the learned counsel engaged by the informant with the prayer for re-cross-examination of D.W.1 and D.W.2, who were already discharged on 02.06.2018. It is submitted by the learned counsel for the parties that the said petition was forwarded through the learned Assistant Public Prosecutor. The said petition was stated to have filed under Section 311 of the Code. The learned trial court in its order dated 23.08.2018, had observed that the petition filed under Section 311 of the Code was not proper. It was of the view that such a petition could be filed only by the learned counsel appearing for the accused. 3.5. The learned trial court had also observed that as per Section 301(2), CrPC, any engaged private counsel who assists the Public Prosecutor, may submit written argument only after evidence is closed with the permission of the court. 3.6. Aggrieved by the said order dated 23.08.2018, the informant i.e. the respondent no. 2 had preferred a criminal revision petition being Criminal Revision no. 43/2018, before the learned Sessions Judge, Hailakandi. 3.6. Aggrieved by the said order dated 23.08.2018, the informant i.e. the respondent no. 2 had preferred a criminal revision petition being Criminal Revision no. 43/2018, before the learned Sessions Judge, Hailakandi. The revisional court by its judgment and order dated 28.05.2019 had allowed the criminal revision petition by setting aside the order dated 23.08.2018, thereby, allowing the prosecution side to further cross-examine the 2 (two) defence witnesses – D.W.1 and D.W.2 -on payment of cost of Rs. 500/-to each of the witnesses. Assailing the said judgment and order dated 28.05.2019 of the revisional court, this petition has been filed by the accused as the petitioner. 4. It is submitted by Mr. Barbhuiya that once the examination and cross-examination of the defence witnesses were over, there could not be any re-cross-examination without there being any re-examination of the defence witnesses. He has further submitted that the Petition no. 2428/2018 was bereft of any reason as to why the defence witnesses were required to be recalled. There was no whisper in the said petition what were the important questions relating to the case which required answers. The provision of Section 311, CrPC cannot be invoked, at the mere request of a party, to recall any witness already examined, unless the court is of the view that the same are essential to arrive at a just decision of the case. 5. Ms. Jahan, learned Additional Public Prosecutor has submitted that the power under Section 311 of the Code can be exercised at any stage of any inquiry, trial or other proceeding under the Code to recall and re-examine any witness already examined but such discretion has to be exercised by the court only in the event it arrives at an opinion that such person’s evidence is essential to arrive at the just decision of the case. If a party to the proceeding submits an application for recalling and re-examining any such witness, the party making such application has to place before the court sufficient materials so as to enable the court to examine the essentiality to recall and re-examine such witness. 6. Ms. Choudhury has submitted that the petition for re-cross-examination of the witnesses was submitted by the learned engaged counsel for the victim-cum-informant through the learned Assistant Public Prosecutor. 6. Ms. Choudhury has submitted that the petition for re-cross-examination of the witnesses was submitted by the learned engaged counsel for the victim-cum-informant through the learned Assistant Public Prosecutor. As it was forwarded through the learned Assistant Public Prosecutor, it can very well be inferred that it is the prosecution which was of the view that re-cross-examination of the witnesses were for just and fair conclusion of the said case. She has further submitted that during the course of evidence of the 2 (two) defence witnesses, the prosecution counsel failed to put some important questions inadvertently and the same were required to be asked to the 2 (two) defence witnesses. 7. I have considered the submissions of the learned counsel for the parties and also perused the materials available on record. 8. Events leading to the order dated 23.08.2018 of the learned trial court and the judgment and order dated 28.05.2019 have already been exposited above. At this stage, it is apt to refer to the Petition no. 2428/2018 filed by the learned engaged counsel of the informant. In the said petition, it was stated that during the course of defence evidence, the defence witnesses gave certain answers relating to the alleged offence which required explanation and the learned prosecution counsel had failed to put some important questions relating to the case inadvertently. 8.1. It was contended that to arrive at the truth, the re-cross-examination of the 2 (two) defence witnesses as court witnesses was necessary. In case, the informant was not allowed to re-cross-examine them, irreparable loss would be suffered. With such averments, the prayer was made to the court to re-summon the 2 (two) defence witnesses – D.W.1 and D.W.2 as court witnesses and to allow further cross-examination of these 2 (two) witnesses in the interest of justice. 9. While Section 137 of the Evidence Act, 1872 (‘the Evidence Act’, for short) has mentioned about the different types of examination of witnesses Section 138 of the Evidence Act has provided for the order of examinations. As per Section 137 of the Evidence Act, examination of a witness by a party who calls him shall be called his examination-in-chief. The examination of a witness by an adverse party shall be called his cross-examination. The examination of a witness subsequent to the cross-examination by the party who called him, shall be called his re-examination. As per Section 137 of the Evidence Act, examination of a witness by a party who calls him shall be called his examination-in-chief. The examination of a witness by an adverse party shall be called his cross-examination. The examination of a witness subsequent to the cross-examination by the party who called him, shall be called his re-examination. As per the order of examinations, provided in Section 138 of the Evidence Act, there shall be examination-in-chief of the witnesses first, then (if the adverse party so desires) their cross-examination and thereafter, (if the party calling him so desires) their re-examination. It further provides that the re-examination shall be directed to the explanation of matters referred to in the cross-examination; and, if new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross-examine upon that matter. From a reading of the aforesaid 2 (two) provisions, it is evident that there cannot be any re-cross-examination of a witness unless there is any reexamination. 10. Notwithstanding the above, the provision of Section 311 of the Code has provided the power to the court to summon material witness, or examine a person present at any stage of any inquiry, trial or other proceeding under the Code if his evidence appears to it to be essential to the just decision of the case. For ready reference, Section 311, CrPC is extracted hereunder :- “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. The Supreme Court had the occasion to consider the purpose and object behind the provision contained in Section 311 of the Code in Rajaram Prasad Yadav vs. State of Bihar and another, reported in (2013) 14SCC 461. After considering the scope of Section 311, CrPC and a number of decisions rendered earlier on the subject, the Supreme Court has observed as under : “17.1. Whether the court is right in thinking that the new evidence is needed by it? After considering the scope of Section 311, CrPC and a number of decisions rendered earlier on the subject, the Supreme Court has observed as under : “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 CrPC should ensure that the judgment should not be rendered on inchoate, inconclusive and 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 re-examine any such person. 17.4. The exercise of power under Section 311 CrPC 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 CrPC 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 safeguard, while exercising the discretion. 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 safeguard, 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. 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 CrPC 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.” 12. If after keeping the above principles in mind, the fact situations obtaining in the case in hand are considered, it is seen that the informant had filed Petition no. 2428/2018 mentioning only to the extent that the defence witnesses had given certain answers relating to the alleged offence which required explanation. If after keeping the above principles in mind, the fact situations obtaining in the case in hand are considered, it is seen that the informant had filed Petition no. 2428/2018 mentioning only to the extent that the defence witnesses had given certain answers relating to the alleged offence which required explanation. It was further averred that the learned prosecution counsel failed to put some important questions to the witnesses inadvertently. The petition was silent about the issues which required explanation nor the questions which were required to be put to the defence witnesses, had been mentioned. As has been laid down in Rajaram Prasad Yadav(Supra), the power under Section 311 of the Code is to be exercised only in the event it appears to the court that the evidence of any witness is essential to the just decision of the case. The exercise of power under Section 311, Cr.PC should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to just and correct decision of the case. The exercise of such power is not to be used for filing in a lacuna in a prosecution case. 13. It is fundamental principle of criminal proceeding that it is the prosecution which has to establish its case beyond all reasonable doubts by leading cogent and reliable evidence against the accused. The burden to establish the case of the prosecution never shifts to the accused. The burden that lies on the accused is to probabilise the prosecution case by leading his evidence. 14. In the case in hand, the prosecution had already led its evidence and after closure of the prosecution evidence, the accused was examined and thereafter, the defence evidence was led. The defence witnesses were, thereafter, cross-examined by the prosecution. After the examination and cross-examination of the defence witnesses were over, the defence witnesses were discharged and the matter went to the stage of argument. It was at that stage the informant through the Assistant Public Prosecutor had filed the Petition no. 2428/2018 on 23.08.2018 seeking re-cross-examination and recall of the defence witnesses without disclosing what explanations were required from the defence witnesses and what questions remained to be put to the defence witnesses requiring elicitation. It was at that stage the informant through the Assistant Public Prosecutor had filed the Petition no. 2428/2018 on 23.08.2018 seeking re-cross-examination and recall of the defence witnesses without disclosing what explanations were required from the defence witnesses and what questions remained to be put to the defence witnesses requiring elicitation. Nothing has been said in the petition that such recall of the witnesses already examined would be essentially for the just decision of the case. 15. The purpose and object of the provision for recalling and re-examining a witness is for the court to see that no injustice is done to any of the parties in the case. Thus, the power available with the court has to be exercised only if the court, for valid reasons, reaches an opinion that such recall and re-examination of a witness is essential to the just decision of the case. Such a finding must be specifically recorded by the court with reasons before the power is exercised and essentiality to recall and re-examined a witness in exercise of the power under Section 311, CrPC can be best demonstrated by recording of reasons. On perusal of the judgment and order dated 28.05.2019 of the revisional court, it is found that no reason has been assigned in reversing the order dated 23.08.2018 of the learned trial court. The opportunity was granted for further cross-examination of the defence witnesses under the phrase of ends of justice. 16. There is another aspect of the matter. The informant had engaged a learned counsel on her behalf and a petition being Petition no. 2345/2018, was made before the learned trial court on 21.06.2018 to allow the learned counsel engaged by the informant to assist the prosecution side. Sub-section (2) of Section 301, CrPC has provided that if in any case where the Public Prosecutor or Assistant Public Prosecutor is in charge, any private person instructs a pleader to prosecute any person in such court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution and the pleader so instructed, shall act therein under the directions of the Public Prosecutor or the Assistant Public Prosecutor, and, may, with the permission of the court, submit written arguments after evidence is closed in the case. 17. 17. The learned trial court by its order dated 02.08.2018 had permitted the learned engaged counsel for the informant to assist the prosecution side. The scope and ambit of provision of Section 301(2) and the proviso to Section 24(8) of the Code came up for consideration before the Supreme Court in the case of Rekha Murarka vs. The State of West Bengal and another, reported in (2020) 2SCC 474. 18. Without dilating and discussing all possible scenarios that may arise during the criminal prosecution here, it is noticed that in Rekha Murarka (supra), the Supreme Court has observed that a victim’s counsel should ordinarily not be given the right to make oral arguments or examine and cross-examine witnesses. Under Section 301(2), CrPC, the private party’s pleader is subject to the direction of the Public Prosecutor. Similarly, the victim’s counsel appointed in terms of the proviso to Section 24(8), CrPC is also placed under the same limitation. The purpose and object of the said two provisions are to ensure that the interests of the private party or the victim are duly represented. It is observed therein that if the victim’s counsel feels that a certain aspect had gone unaddressed in the examination of the witnesses or the arguments advanced by the Public Prosecutor, he may route any questions or points through the Public Prosecutor. 18.1. If there arises a situation where the Public Prosecutor had failed to highlight some issues of importance despite it having been suggested by the victim’s counsel, the victim’s counsel still not be given the opportunity of making oral arguments or examining witnesses. In such situation, the private party/victim’s counsel can avail the recourse of channelizing the questions or arguments through the Presiding Officer of the Court first. An example has been cited in that if the victim’s counsel finds that the Public Prosecutor has not examined a witness properly and not incorporated his suggestions either he may bring certain questions to the notice of the Court. If the Judge finds merit in them, he may take action accordingly by invoking his power under Section 311, CrPC. 19. In the case in hand, by the time the defence witnesses were examined and cross-examined, the informant did not engage any counsel on her behalf. The informant had engaged her counsel only at the stage of argument. If the Judge finds merit in them, he may take action accordingly by invoking his power under Section 311, CrPC. 19. In the case in hand, by the time the defence witnesses were examined and cross-examined, the informant did not engage any counsel on her behalf. The informant had engaged her counsel only at the stage of argument. When the petition was preferred for recalling and/or re-cross-examining of the defence witnesses, on what aspects those witnesses were required to be recalled and re-cross-examined were not highlighted in Petition no. 2428/2018. 20. The petition did not, in any manner, assist the learned trial court to arrive at a reasoned decision that such recall and re-examination of the defence witness who had already been examined, can be essential to arrive at a just decision of the case. In view of the principles laid down in the decisions mentioned above and applying the same to the fact situation obtaining in the case in hand, this Court is of the view that the judgment and order dated 28.05.2019 passed by the revisional court in Criminal Revision no. 43/2018 is not sustainable. This Court finds that the petition no. 2428/2018 did not contain any valid ground for the Court to exercise its power under Section 311 of the Code. In such view above the matter, the dismissal of the Petition no. 2428/2018 cannot be held to be unjustified. Accordingly, the judgment and order dated 28.05.2019 of the learned revisional court is set aside. The interim order passed in this case is to abide by this order. There shall, however, be no order as to cost. 21. The learned counsel for the parties have submitted that the case is at the stage of argument. It is provided that the learned counsel instructed by the informant/victim is at liberty to submit written argument in terms of Section 301(2) of the Code. In view of the order passed today, the parties shall appear before the learned trial court on 15.07.2020. Upon such appearance of the parties, the learned trial court will proceed further with the trial of G.R. Case No. 700/2013.