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12. As against the above submissions, learned counsel for the respondents contended that as enormous powers are vested in the Court under Section 311 Cr.P.C., in the matter of examination or re-examination of a witness in order to arrive at a just conclusion and the High Court having exercised its powers in pursuance of the said power, the order of the High Court does not call for interference.

13. Having heard the learned counsel for the respective parties and having bestowed our serious consideration to the issue involved, we find force in the submission of the counsel for the appellant, as the same merits acceptance. In order to appreciate the stand of the appellant it will be worthwhile to refer to Section 311 Cr.P.C., as well as Section 138 of the Evidence Act. The same are extracted hereunder:

Section 138, Evidence Act

138. Order of examinations- witnesses shall be first examined-in- chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.

The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.

Direction of re-examination- The re-examination shall be directed to the explanation of matters referred to in 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.”

14. A conspicuous reading of Section 311 Cr.P.C. would show that 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. 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”. By using the said expression “any” as a pre-fix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied by the Court was only in relation to such evidence that appears to the Court to be essential for the just decision of the case. Section 138 of the Evidence Act, prescribed the order of examination of a witness in the Court. Order of re-examination is also prescribed calling for such a witness so desired for such re-examination. Therefore, a 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 be in consonance with the prescription contained in Section 311 Cr.P.C. It is, therefore, imperative that the invocation of Section 311 Cr.P.C. and its application in a particular case can be ordered by the Court, only by bearing in mind the object and purport of the said provision, namely, for achieving a just decision of the case as noted by us earlier. The power vested under the said provision is made available to any Court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as witness or to recall or re-examine any person already examined. Insofar as recalling and re-examination of any person already examined, the Court must necessarily consider and ensure that such recall and re-examination of any person, appears in the view of the Court to be essential for the just decision of the case. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re-examined has to be ascertained. To put it differently, while such a widest power is invested with the Court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution.

examine a witness arises only after the conclusion of cross examination and S.C. 138 says it shall be directed to the explanation of any part of his evidence given during cross examination which is capable of being construed unfavourably too his own side. The object is to give an opportunity to reconcile the discrepancies if any between the statements in examination in chief and cross examination or to explain any statement inadvertently made in cross examination or to remove any ambiguity in the deposition or suspicion cast on the evidence by cross examination. Where there is no ambiguity or where there is nothing to explain, question put in re-examination with the sole object of giving a change to the witness to unto the effect of the previous statement should not be asked during re-examination (S.142). Section 154 is wide in its scope and court can permit a person calling a witness to but question in the nature of cross examination at the stage of re-examination provided it take care to give opportunity to the adverse party to cross examine the witness in the such case”. It is clear from the afore quoted principles decided by the Hon’ble Apex Court and from the evidence of PW-9 as well as from the instant two aforesaid petitions filed on behalf of the PW-9 and the Additional P.P. that the cross examination of PW-9 does not contain any evidence against his evidence in chief which could be explained or made clear by re-examination of PW-9 through his re- examination vide Section 138 Evidence Act or Section 311 of the Criminal Procedure Code. It is also clear that PW-9 had filed petition after filing of the case against him by the accused. As such the two instant petitions are not maintainable. However, whether the hostility of PW-9 would have been tested on the touch stone of Section 145 Evidence Act by examining the I.O. as some other prosecution witness have supported the prosecution case. The evidence of the I.O. of the case is taken would have sufficed the end of justice.”