1. Heard learned counsel for the applicant. Admit. Ms Kalyani Deshpande, learned Additional Public Prosecutor waives service for respondent no.1-State. Notice to respondent no. 2 dispensed with. By consent of parties, taken up for final disposal forthwith.

2. By this application, applicant has prayed for quashing and setting aside order dated 18.7.2011 passed by District Judge-2 and Additional Sessions Judge, Achalpur in Sessions Trial No. 100 of 2010. By the impugned order the prosecution is allowed to reexamine P.W. 4 Nanda Narayanrao Nandane on limited question of ambiguity. P.W. 4 Nanda first stated that she saw the incident and later, she deposed that she came to the spot after the incident. Learned APP appearing in the trial, therefore, sought permission from the trial Court to re-examine P.W. 4 Nanda to clear the ambiguity.

3. Learned counsel for the applicant submitted that there was no ambiguity in the deposition of P.W. 4 Nanda. He contended that re-examination cannot be allowed to fill up lacunae and to wash away the admissions. Reliance is placed on the ratio laid down in the case of Pannayarv. State of TN reported in (2009) 9 SCC 152).

4. Learned Additional Public Prosecutor supported the impugned order and submitted that no prejudice would be caused to the applicant-accused if P.W. 4 Nanda is allowed to re-examined.

5. There is no dispute about the preposition of law laid down in the case of MohanlalShamji Soni v. Union of India and anr reported in AIR 1991 SC 1346. It is laid down thus :

“It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and 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 sides. It is the duty of a Court not only to do justice but also to ensure that justice is being done. In order to enable the Court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted whereunder any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or reexamine any person already examined who are expected to be able to throw light upon the matter in dispute, because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated.”

6. Section 311 of the Code of Criminal Procedure runs thus :

“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.

7. Section 311 of the Criminal Procedure Code consists of two parts, viz. (1) giving discretion to the court to examine the witness at any stage; and (2) the mandatory portion which compels a court to examine a witness if his evidence appears to be essential to the just decision of the case. The Section enables and in certain circumstances, imposes on the Court the duty of summoning witnesses who would have been otherwise brought before the Court. This Section confers a wide discretion on the Court to act as the exigencies of justice require. The power of the Court under Section 165 of the Evidence Act is complementary to its power under this Section. These two sections between them confer jurisdi