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Saturday, December 7, 2013

Scope of sec.301 and Sec.311 Cr.P.C. - Duty of court / Public prosecutor = Victim/ complainant has got limited scope to participate in criminal trial as state take over the case - When latches and lacunas were brought to the notice before the court or Public prosecutor by him/her , it is their duty to consider the same instead of reject the same as not maintainable under sec.301 Cr. P.C. - When an official Witness who conducted Test Identification parade - Being a Judicial Officer - how can he be permitted to depose in his chief examination contradicting his report/beyond his report which was not found in his record produced - is it not a duty of court or the public prosecutor to cross examine that witness statement made deliberately with out any basis infavour of Accused = Apex court set aside the orders of Lower court and High court and directed the lower court to recall the witness and made specific cross examination about the specific point deposed by him with out any record or beyond his record test identification report and gave an opportunity to file written submissions at the time of arguments = Sister Mina Lalita Baruwa …. Appellant VERSUS State of Orissa and others …. Respondent = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=41046

Scope of sec.301 and Sec.311 Cr.P.C. - Duty of court / Public prosecutor = Victim/ complainant has got limited scope to participate in criminal trial as state take over the case - When latches and lacunas were brought to the notice before the court or Public prosecutor by him/her , it is their duty to consider the same instead of reject the same as not maintainable under sec.301 Cr. P.C. - When an official Witness who conducted Test Identification parade - Being a Judicial Officer - how can he be permitted to depose in his chief examination contradicting his report/beyond his report which was not found in his record produced - is it not a duty of court or the public prosecutor to cross examine that witness statement made deliberately with out any basis infavour of Accused = Apex court set aside the orders of Lower court and High court and directed the lower court to recall the witness and made specific cross examination about the specific point deposed by him with out any record or beyond his record test identification report and gave an opportunity to file written submissions at the time of arguments =

 PW-18  in  the  course  of  the  chief-
      examination which reads as under:
      “Sister Mina Baruwa identified accused Santosh  Patnaik  as  the  said
      suspect gave her a  slap,  pulled  her  wearing  Saree,  squeezed  her
      breasts and did not commit any other overt act.”

   9. The grievance of the appellant is that while such an incorrect version
      was spoken to by PW-18 as an authorized officer who conducted the test
      identification parade,
there was not even a suggestion put to PW-18 by
      the prosecution and thereby the said statement remained uncontroverted
      in so far as it related to the evidence of PW-18 vis-à-vis  respondent No.9. 
The learned senior counsel submitted that since such a statement
      contained in the chief-examination of  PW-18  was  to  the  effect  as
      though the appellant told him that apart from the alleged overt act of
      slapping, pulling of the saree  worn  by  her  and  squeezing  of  the
      breasts  nothing  more  was  committed,  it  was  imperative  for  the
      prosecution to have confronted  PW-18  with  particular  reference  to
      Exhbit-8 in order to make the recording of the  evidence  without  any
      ambiguity or else  it  would  seriously  prejudice  the  case  of  the
      prosecution and  the  whole  grievance  of  the  appellant  in  having
      preferred the complaint as against the accused  would  be  frustrated.
      The learned senior counsel further pointed out that when the appellant
      was cross-examined, she specifically refuted the above version of  PW-
      18 as under in paragraph 26:
      “….It is not a fact that I stated before the  S.D.J.M.  Cuttack  while
      identifying accused Santosh Kumar Patnaik that the  said  accused  had
      given me a slap, pulled my saree and squeezed my breast and he did not
      commit any other offence. It is a fact that I did not state before the
      Magistrate when I identified accused Santosh @ Mitu Patnaik  that  the
      said accused sat on my thighs and raped me on the date  of  occurrence
      at Jana Vikash Kendra…..”  
It was in the above stated background, according to the appellant, she approached the  Special  Public  Prosecutor  to  set  right  the  said deliberate misstatement of PW-18 in the evidence and confront PW-18 as to whatever stated by him was not reflected in the test identification parade report or the Annexure marked alongwith Exhibit-8. 
According to the appellant, the Special Public Prosecutor having  not  bothered  to take any steps, an application was  moved  by  the  appellant  herself before the learned trial Judge on 01.05.2011. 
In  the  proceedings  of
      the learned Sessions Judge dated 16.05.2011 while making reference  to
      the petition filed by the appellant for recalling PW-18,  the  learned
      trial Judge by stating that such a petition at  the  instance  of  the
      victim not having been filed by the  Special  Public  Prosecutor,  the
      same was rejected after hearing the appellant solely on the ground  of
      maintainability.

  11. Aggrieved by the said order, the appellant moved  the  High  Court  of
      Cuttack by way of Criminal M.C. No.1746 of 2011  in  which  the  order
      impugned in this appeal came to be passed.
The High Court while making
      reference to Section 301 of Cr.P.C., took the view that the  appellant
      as an informant had a very limited role to play so far as the trial is
      concerned, that she could  not  have  filed  the  petition  to  recall
      certain witnesses and that  such  a  step  was  beyond  the  authority
      granted to an informant or a private person under Section 301  Cr.P.C.
     
The High Court proceeded further and stated that  
reposing  confidence
      in the trial Court that the learned trial Judge would eschew any  fact
      not found on record or irrelevant and just decision would be  rendered
      and further observed that 
it would however be open for  the  appellant
      to file a written submission in which event  the  trial  Court  should
      accept such written submission and consider the same while passing the
      judgment.
 =

 scope of Section  311  Cr.P.C.,
we wish to refer a recent decision rendered by this Court  in
  Rajaram Prasad Yadav vs. State of Bihar  and  another  –  AIR  2013  SC  3081,
      wherein in paragraph 14 the law has been stated as under:

      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………. 
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.

  33. Having regard to our above conclusions 
we find that the order  of  the
      trial Court, as well as that of the High Court cannot be sustained and
      while setting aside the same,
we direct the trial Court to recall  PW-
      18 and call upon the prosecutor to cross-examine the said  witness  on
      the aspect relating to the  statement,  namely,  “Sister  Mina  Baruwa
      identified accused Santosh Patnaik as the  said  suspect  gave  her  a
      slap, pulled her wearing Saree,  squeezed  her  breasts  and  did  not
      commit any other overt act” vis-à-vis the contents  of  the  statement
      recorded by PW-18 in Exhibit-8 at  the  time  of  test  identification
      parade when the appellant as PW-25 identified the respondent  No.9  as
      has been prayed for on behalf of the appellant  and  also  provide  an
      opportunity to the appellant to file  the  written  arguments  on  her
      behalf as provided under Section 301 of Cr.P.C.
Since  the  trial  was
      withheld by virtue of the pendency of this appeal till this date,  the
      trial Court is directed to comply with the  directions  as  above  and
      conclude  the  proceedings  in  accordance  with  law   expeditiously,
      preferably within three months from the date of production of the copy
      of this order. The appeal stands allowed on the above terms.                     

         Reportable

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.2044 OF 2013
                       (@ SLP (CRL.) No.1103 of 2012)


Sister Mina Lalita Baruwa                          …. Appellant


                                   VERSUS



State of Orissa and others                         …. Respondent

                               J U D G M E N T


Fakkir Mohamed Ibrahim Kalifulla, J.

   1. Leave granted.

   2. This appeal is directed against the order of the High Court of Cuttack
      in Criminal Miscellaneous Case No.1746 of 2011 dated  05.01.2012.  The
      informant is the appellant before us. The informant is stated to be  a
      Catholic Nun and according to her she was brutally assaulted, molested
      and also gang raped by the assailants who have been arrayed as accused
      in the session’s case which is being tried by the District &  Sessions
      Judge in S.T. No.243 of 2010.

   3. Briefly noting the contents in the  charge-sheet,  we  find  that
one
      Swamy Laxmananda Saraswati was killed in Kandhamal District, which led
      to a communal violence in  the  entire  district.
The  appellant  and
      another Jesuit father by name Thomas Chellan and some others who  were
      residents  of  Jesuit  Home  called  ‘Divyajyoti   Pastoral   Centre’,
      Kanjamendi of district Kandhamal, fearing attack  by  the  unruly  mob
      took shelter  in  the  house  of  one  Prahallad  Pradhan  of  village
      Kanjamendi on 24.08.2008.

   4. On 25.08.2008, according to the appellant, around  1  p.m.  
a  mob  of
      about 40 to 50 persons came to the residence  of  the  said  Prahallad
      Pradhan, dragged her and other priests to the road while some  of  the
      members of the mob molested her and also brutally assaulted  her.  
The
      appellant was stated to have been dragged to a nearby building  called
      ‘Jana Vikash’ where the 8th accused, respondent No.9  herein,  alleged
      to have raped her while the other accused aided for the commission  of
      the said offence apart from molesting her.

   5. The appellant was stated to have been subsequently handed over to  the
      Block Development Officer of K.  Nuagaon  who  in  turn  produced  the
      appellant and the Jesuit father Chellan to the Inspector In-charge  of
      Baliguda  Police  Station  for  necessary  action.   
Thereafter,   the
      appellant filed  her  complaint  on  26.08.2008,  whereafter  she  was
      medically examined at Baliguda Sub-Divisional Hospital  and  that  her
      wearing apparels were sealed and sent to State FSL,  Bhubneswar  along
      with the exhibits collected by the medical  officer.  Those  materials
      were stated to have been subsequently sent to  CFSL  Kolkata  for  DNA
      Profiling Test.

   6. Appellant in her complaint stated that she would be in a  position  to
      identify the assailants though she was not knowing their names.

   7. The issue with which we  are  now  concerned  relates  to  an  alleged
      incorrect version stated by PW-18 before whom the Test  Identification
      Parade was held on 05.01.2009. 
PW-18 was the  Sub-Divisional  Judicial
      Magistrate, Cuttack on that date. 
In the course of examination of  PW-
      18, the prescribed format of Schedule XLVII of Cr.P.C. along with  the
      proceedings recorded by him were marked as Exhibit-8.  
The  signatures
      of the witnesses were marked as Exhibits-8/1 to 8/5.  
The  description
      of test identification parade, conducted by him, was marked as Exhibit- 8/6.
   8. It was pointed out by Mr.  Colin  Gonsalves,  learned  senior  counsel
      appearing for the appellant, that in Exhibit-8 either in the  note  or
      in the various columns of the format or in the proceedings recorded by
      PW-18 on 05.01.2009, there was no reference to any statement  made  by
      the appellant as regards the behaviour of respondent No.9 except  mere
      identification of the suspects, namely, respondents  No.3  and  9  and
      wrong identification of an under trial prisoner by name Santosh  Kumar
      Swain.
The learned  senior  counsel  then  brought  to  our  notice  a
      specific  statement  made  by  PW-18  in  the  course  of  the  chief-
      examination which reads as under:
      “Sister Mina Baruwa identified accused Santosh  Patnaik  as  the  said
      suspect gave her a  slap,  pulled  her  wearing  Saree,  squeezed  her
      breasts and did not commit any other overt act.”

   9. The grievance of the appellant is that while such an incorrect version
      was spoken to by PW-18 as an authorized officer who conducted the test
      identification parade,
there was not even a suggestion put to PW-18 by
      the prosecution and thereby the said statement remained uncontroverted
      in so far as it related to the evidence of PW-18 vis-à-vis  respondent No.9. 
The learned senior counsel submitted that since such a statement
      contained in the chief-examination of  PW-18  was  to  the  effect  as
      though the appellant told him that apart from the alleged overt act of
      slapping, pulling of the saree  worn  by  her  and  squeezing  of  the
      breasts  nothing  more  was  committed,  it  was  imperative  for  the
      prosecution to have confronted  PW-18  with  particular  reference  to
      Exhbit-8 in order to make the recording of the  evidence  without  any
      ambiguity or else  it  would  seriously  prejudice  the  case  of  the
      prosecution and  the  whole  grievance  of  the  appellant  in  having
      preferred the complaint as against the accused  would  be  frustrated.
      The learned senior counsel further pointed out that when the appellant
      was cross-examined, she specifically refuted the above version of  PW-
      18 as under in paragraph 26:
      “….It is not a fact that I stated before the  S.D.J.M.  Cuttack  while
      identifying accused Santosh Kumar Patnaik that the  said  accused  had
      given me a slap, pulled my saree and squeezed my breast and he did not
      commit any other offence. It is a fact that I did not state before the
      Magistrate when I identified accused Santosh @ Mitu Patnaik  that  the
      said accused sat on my thighs and raped me on the date  of  occurrence
      at Jana Vikash Kendra…..”


  10. It was in the above stated background, according to the appellant, she approached the  Special  Public  Prosecutor  to  set  right  the  said deliberate misstatement of PW-18 in the evidence and confront PW-18 as to whatever stated by him was not reflected in the test identification parade report or the Annexure marked alongwith Exhibit-8. 
According to the appellant, the Special Public Prosecutor having  not  bothered  to take any steps, an application was  moved  by  the  appellant  herself before the learned trial Judge on 01.05.2011. 
In  the  proceedings  of
      the learned Sessions Judge dated 16.05.2011 while making reference  to
      the petition filed by the appellant for recalling PW-18,  the  learned
      trial Judge by stating that such a petition at  the  instance  of  the
      victim not having been filed by the  Special  Public  Prosecutor,  the
      same was rejected after hearing the appellant solely on the ground  of
      maintainability.

  11. Aggrieved by the said order, the appellant moved  the  High  Court  of
      Cuttack by way of Criminal M.C. No.1746 of 2011  in  which  the  order
      impugned in this appeal came to be passed.
The High Court while making
      reference to Section 301 of Cr.P.C., took the view that the  appellant
      as an informant had a very limited role to play so far as the trial is
      concerned, that she could  not  have  filed  the  petition  to  recall
      certain witnesses and that  such  a  step  was  beyond  the  authority
      granted to an informant or a private person under Section 301  Cr.P.C.
   
The High Court proceeded further and stated that  
reposing  confidence
      in the trial Court that the learned trial Judge would eschew any  fact
      not found on record or irrelevant and just decision would be  rendered
      and further observed that 
it would however be open for  the  appellant
      to file a written submission in which event  the  trial  Court  should
      accept such written submission and consider the same while passing the
      judgment.

  12. Mr. Colin Gonsalves, learned senior counsel while assailing the orders
      impugned in this appeal submitted that in a case of this nature  where
      the victim suffered a diabolical crime at the hands of the respondent-
      accused and the Judicial Magistrate who was expected to depose  before
      the Court in exactitude of what actually transpired in the  course  of
      the  conduct  of  test  identification  parade,  made   a   deliberate
      misstatement in contravention to what was found in Exhibit-8 which was
      a record prepared by him, it was incumbent upon  the  prosecution  and
      also the Court to have ensured  that  no  part  of  the  evidence  was
      allowed to be placed that would mislead the  Court  or  which  totally
      conflicts with the document,  the  author  of  which  is  the  witness
      himself.
The learned senior counsel submitted that in the light of the
      various decisions of this Court on interpretation of Section 301  read
      along with Section 311  of  Cr.P.C  and  also  on  the  locus  of  the
      appellant as a victim to seek for appropriate steps  to  be  taken  to
      rectify such grave error in the recording of evidence, submitted  that
      the learned trial Judge, as  well  as  the  High  Court,  committed  a
      serious error of law.
  13. The learned senior counsel submitted that once the  appellant  brought
      to the notice of the learned Special Public Prosecutor and the learned
      trial Judge such an error apparent on the face of the  record,  having
      regard to the enormous powers vested  with  the  learned  trial  Judge
      under Section 311 Cr.P.C., appropriate steps should have been taken to
      correct the errors by  directing  the  Special  Public  Prosecutor  to
      confront PW-18 on the  particular  statement  by  recalling  him.  The
      learned senior counsel, therefore, contended that the failure  of  the
      trial Judge, as well as, the High Court in doing so while passing  the
      orders impugned in this appeal, persuaded the appellant  to  knock  at
      the doors of this Court.
 Reliance was placed  upon  the  decisions  in
      Mohanlal Shamji Soni vs. Union of India and another  -  (1991)  Supl.1
      SCC 271, Rajendra Prasad  vs.  Narcotic  Cell  -  (1999)  6  SCC  110,
      Sidhartha Vashisht alias Manu Sharma vs. State (NCT of Delhi) - (2010)
      6 SCC 1, K. Pandurangan vs. S.S.R. Velusamy and another - (2003) 8 SCC
      625, J.K. International vs. State (Govt. of NCT of Delhi) and others -
      (2001) 3 SCC 462 and Suga Ram alias Chhuga Ram vs. State of  Rajasthan
      and others - (2006) 8 SCC 641.

  14. The learned standing counsel appearing for the first  respondent-State
      would only contend  that  the  appellant  never  ever  approached  the
      Special Public Prosecutor in order to  work  out  the  remedies  under
      Section 301 Cr.P.C. and, therefore, the order  of  the  learned  trial
      Judge, as well as the High Court, cannot  be  found  fault  with.  The
      learned standing counsel only contended that  PW-18  was  examined  on
      30.07.2010 while the  present  application  at  the  instance  of  the
      appellant was filed belatedly on 11.05.2011, nearly  after  10  months
      and therefore, on the ground of delay as well  the  grievance  of  the
      appellant could not be redressed.

  15. On behalf of 9th respondent, Mr. Rana Mukherjee,  learned  counsel  by
      relying upon Shiv Kumar vs. Hukam Chand and another  -  (1999)  7  SCC
      467, contended that the appellant had no locus to seek the  remedy  as
      prayed for before the trial Judge and the High Court.

  16. Having heard the learned senior counsel for the appellant as  well  as
      the Public Prosecutor, the State  counsel  and  counsel  for  the  9th
      respondent and having perused Exhibit-8, the evidence of PW-18 and PW-
      25, who was the victim, the order of the learned trial Judge, as  well
      as that of the High Court,
we are of the considered view that both the
      learned trial Judge, as well as the High Court,  miserably  failed  to
      come alive to the situation while dealing with a case of  this  nature
      where a charge under Section 376(2)(g) has been  alleged  against  the
      accused in which PW-18 a Judicial Officer as a statutory authority who
      held the identification  parade  made  a  totally  blatant  and  wrong
      statement not in consonance with the record of identification  parade,
      namely, Exhibit-8 and thereby provided scope  for  serious  illegality
      being committed for dispensing justice.
At the very  outset,  however,
      we must state that whatever views which we express in the judgment are
      mainly pertaining to the nature of documentary  evidence  as  recorded
      prior to the examination of PW-18 and PW-25,  as  well  as,  the  oral
      evidence in the course of their examination before the trial Court.

  17. Having perused the said evidence  with  particular  reference  to  the
      issue brought to the notice of this Court,
we are  of  the  firm  view
      that the inability of the trial Court in failing to  take  appropriate
      action as and when it was brought to its notice about the  fallacy  in
      the oral version, would  certainly  cause  a  serious  miscarriage  of
      justice, if allowed to remain. 
Unfortunately, in our considered  view,
      the High Court appears to have adopted a very casual approach  instead
      of attempting to find out as to the appropriate  procedure  which  the
      trial Court should have followed in a situation like  this.  
The  High
      Court also committed a serious illegality in merely stating that under
      Section 301 Cr.P.C. there is no scope for a victim as a private  party
      to take any effective step to rectify a serious fallacy committed by a
      statutory witness who is supposed to maintain cent per cent neutrality
      while giving evidence  before  the  Criminal  Court.  
Where  the  said
      witness is a Judicial Officer whose version before the  Court  carries
      much weight, by virtue of his  status  as  a  Judicial  Officer  while
      acting  as  a  statutory  witness,  namely,  as  an  officer  who  was
      authorized to hold a test identification parade, it was incumbent upon
      such witness to maintain utmost truthfulness without giving any  scope
      for any party to gain  any  advantage  by  making  a  blatantly  wrong
      statement  contrary  to   records.   
We,   therefore,   find   serious
      irregularity in the orders impugned in this appeal.

  18. We are convinced that the grievances as projected by the appellant  as
      a victim, who was a victim of an offence of such a  grotesque  nature,
      in our considered view, the trial Court as  well  as  the  High  Court
      instead of rejecting the application of the appellant by simply making
      a reference to Section 301 Cr.P.C. in a blind folded manner, ought  to
      have examined as to how the oral evidence of PW-18 which did not tally
      with  Exhibit-8,  the  author  of  whom  was  PW-18  himself,  to   be
      appropriately set right by either  calling  upon  the  Special  Public
      Prosecutor himself to take necessary steps or for  that  matter  there
      was nothing lacking in the Court to have  remedied  the  situation  by
      recalling the said witness and by putting appropriate Court  question.
     
It is well  settled  that  any  crime  is  against  the  society  and,
therefore, if any witness and in the case on hand a statutory  witness happened to make a blatantly wrong statement not  born  out  from  the  records of his own, we fail to understand why at all the trial  Court,  as well as the High Court, should have hesitated or adopted  a  casual approach instead of taking appropriate measures  to  keep  the  record  straight and clear any ambiguity in so far as the  evidence  part  was concerned and also ensure that no prejudice was caused to any one.  
In our considered view, the Courts below should have made an  attempt  to reconcile Sections 301 and 311 Cr.P.C. in such peculiar situations and ensured that the trial proceeded in the right direction.


  19. In criminal jurisprudence,
while the offence is against  the  society,
      it is the unfortunate victim who is the actual sufferer and therefore,
      it is imperative for the State and the prosecution to ensure  that  no
      stone is left unturned.
It is also the equal, if not  more,  the  duty
      and responsibility of the Court to be alive and alert in the course of
      trial of a criminal case and ensure  that  the  evidence  recorded  in
      accordance with law reflect every  bit  of  vital  information  placed
      before it.
 It can also be said that in that process the  Court  should
      be conscious of its responsibility and at times when  the  prosecution
      either deliberately or inadvertently omit to  bring  forth  a  notable
      piece of evidence or a conspicuous statement of  any  witness  with  a
      view to either support or prejudice the case of any party, should  not
      hesitate to interject and prompt the prosecution side to  clarify  the
      position or act on its own and get the record of proceedings straight.
     
Neither the prosecution nor the Court should remain a silent spectator
      in such situations.
Like in the present case where there  is  a  wrong
      statement made by a  witness  contrary  to  his  own  record  and  the
      prosecution failed to note the situation at that moment or later  when
      it was brought to light and whereafter also the  prosecution  remained
      silent, the Court should have acted promptly and taken necessary steps
      to rectify the situation appropriately. The whole scheme of  the  Code
      of Criminal Procedure envisages foolproof system  in  dealing  with  a
      crime alleged against the accused and thereby ensure that  the  guilty
      does not escape and innocent is not punished.
It  is  with  the  above
      background, we feel that the present issue involved  in  the  case  on
      hand should be dealt with.

  20. Keeping the said perspective in mind, we refer to Sections 301 and 311
      of Cr.P.C.
      “301. Appearance by public prosecutors.-
(1) The Public  Prosecutor  or
      Assistant Public Prosecutor in charge of a case may appear  and  plead
      without any written authority before any Court in which that  case  is
      under inquiry, trial or appeal.
        
(2)      If in any such case any private person instructs a pleader
      to prosecute any  person  in  any  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  Assistant  Public  Prosecutor,
      and may, with the permission of the Court,  submit  written  arguments
      after the evidence is closed in the case.


     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.”


  21. Having referred to the above statutory provisions,  we  could  discern
      that
while under Section 301(2) the  right  of  a  private  person  to
      participate in the criminal proceedings has got its  own  limitations,
      in the conduct of the proceedings,
the  ingredients  of  Section  311
      empowers the trial Court in order to arrive  at  a  just  decision  to
      resort to an appropriate measure befitting the situation in the matter
      of examination of witnesses.
Therefore, a reading Sections 301 and 311
      together keeping in mind a situation like the one  on  hand,  it  will
      have to be stated that the trial Court should  have  examined  whether
      invocation of Section 311 was required to arrive at a  just  decision.
   
In other words even  if  in  the  consideration  of  the  trial  Court
      invocation of  Section  301(2)  was  not  permissible,  the  anomalous
      evidence deposed by PW-18 having been brought to its knowledge  should
      have examined the scope for invoking Section 311  and  set  right  the
      position. 
Unfortunately, as stated earlier, the trial Court was  in  a
      great hurry in rejecting the appellant’s application without  actually
      relying on the wide powers conferred on it under  Section  311  Cr.P.C
      for recalling PW-18 and ensuring in what other manner,  the  grievance
      expressed by the victim of a serious crime could be remedied.
In  this
      context, a reference to some of  the  decisions  relied  upon  by  the
      counsel for the appellant can be usefully made.

  22. In the decision reported in J.K.  International  (supra),  this  Court
      considered the  extent  to  which  a  complainant  can  seek  for  the
      redressal of his grievances in the on going criminal proceedings which
      was initiated at the behest of the complainant.
Some of  the  passages
      in paragraphs 8, 9, 10 and 12 can be usefully referred to which are as
      under:

      8.……What is the advantage of the court in telling him  that  he  would
      not be heard at all even at  the  risk  of  the  criminal  proceedings
      initiated by him being quashed. 
It is no solace to him to be told that
      if the criminal proceedings are quashed  he  may  have  the  right  to
      challenge it before the higher forums.


      9. The scheme envisaged in the Code of Criminal Procedure  (for  short
      “the Code”) indicates that a person who is aggrieved  by  the  offence
      committed, is not altogether wiped out from the scenario of the  trial
      merely because the investigation was taken over by the police and  the
      charge-sheet was laid by them. Even the fact that the court had  taken
      cognizance of the offence is not sufficient to debar him from reaching
      the court for ventilating his grievance…….


      10. The said  provision  falls  within  the  Chapter  titled  “General
      Provisions as to Inquiries and Trials”. 
When such a role is  permitted
      to be played by a private person, though it is a limited role, even in
      the Sessions Courts, that is enough to show that the  private  person,
      if he is aggrieved, is not wiped  off  from  the  proceedings  in  the
      criminal court merely because  the  case  was  charge-sheeted  by  the
      police. 
It has to be stated further, that the court is given power  to
      permit even such private person to submit his written arguments in the
      court including the Sessions Court. If he  submits  any  such  written
      arguments the court has a  duty  to  consider  such  arguments  before
      taking a decision.

      12.……The limited role which a private person can be permitted to  play
      for prosecution in the Sessions Court has been adverted to above. 
 All
      these would show that an aggrieved private person is not altogether to
      be eclipsed from the scenario when the criminal court takes cognizance
      of the offences based on the  report  submitted  by  the  police.  
The
      reality cannot be overlooked that the genesis in almost all such cases
      is the grievance of one or more individual that they were  wronged  by
      the accused by committing offences against them.”
                                                            (Emphasis Added)


  23. In the famous Best Bakery case in  Zahira  Habibullah  H.  Sheikh  and
      another vs. State of Gujarat and others - (2004) 4 SCC 158, 
this Court
      has reminded the conscientious role  to  be  played  by  the  criminal
      Courts in order to ensure that the Court is alive  to  the  realities,
      realizing its width of power available under Section 311 of the Cr.P.C
      read along with Section 165 of the Evidence Act. The relevant part  of
      the said decision can be culled out from paragraphs 43, 44, 46 and 56,
      which are as under:

      “43. The courts have to take a participatory role in a trial. They are
      not expected to be tape recorders to record whatever is  being  stated
      by the witnesses. Section 311 of the  Code  and  Section  165  of  the
      Evidence Act confer vast and wide  powers  on  presiding  officers  of
      court to elicit all necessary materials by playing an active  role  in
      the evidence-collecting process. They have to monitor the  proceedings
      in aid of justice in a manner that something, which is  not  relevant,
      is not unnecessarily brought into record. Even if  the  prosecutor  is
      remiss in some ways, it can control  the  proceedings  effectively  so
      that the ultimate objective i.e. truth is  arrived  at.  This  becomes
      more necessary where  the  court  has  reasons  to  believe  that  the
      prosecuting agency or the prosecutor is not acting  in  the  requisite
      manner. The court cannot afford to  be  wishfully  or  pretend  to  be
      blissfully  ignorant  or  oblivious  to  such  serious   pitfalls   or
      dereliction of duty  on  the  part  of  the  prosecuting  agency.  The
      prosecutor who does not act fairly and acts more like  a  counsel  for
      the defence is a liability to the fair  judicial  system,  and  courts
      could not also play into the hands of such prosecuting agency  showing
      indifference or adopting an attitude of total aloofness.


      44. The power of the court under Section 165 of the Evidence Act is in
      a way complementary to its power under Section 311 of  the  Code.  
The
      section consists of two parts i.e.:
 (i) giving  a  discretion  to  the
      court to examine the witness at any  stage,  and 
 (ii)  the  mandatory
      portion which compels the court to examine a witness if  his  evidence
      appears to be essential to the just decision of the court. Though  the
      discretion given to the court is very wide, the very width requires  a
      corresponding caution. 
In Mohanlal v. Union of India  this  Court  has
      observed, while considering the scope and ambit of Section  311,  that
      the very usage of the words such as, “any court”, “at any  stage”,  or
      “any enquiry or trial or other proceedings”,  “any  person”  and  “any
      such person” clearly spells out that the section has expressed in  the
      widest-possible terms and do not limit the discretion of the court  in
      any  way.  However,  as  noted  above,  the  very  width  requires   a
      corresponding caution that the discretionary powers should be  invoked
      as the exigencies of justice require  and  exercised  judicially  with
      circumspection and consistently with the provisions of the Code…….



      46.   …….Section 311 of the Code does not  confer  on  any  party  any
      right to examine, cross-examine and re-examine 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.  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.



      56. As pithily stated in Jennison v. Baker: (All ER p. 1006d)
      “The law should not be seen to sit by limply, while those who defy  it
      go free, and those who seek its protection lose hope.”
      Courts have to ensure that accused persons are punished and  that  the
      might or authority of the State are not used to shield  themselves  or
      their men. It should be ensured that they do  not  wield  such  powers
      which under the Constitution has to be held  only  in  trust  for  the
      public and  society  at  large.  If  deficiency  in  investigation  or
      prosecution is visible or can be perceived by lifting the veil  trying
      to hide the realities or covering  the  obvious  deficiencies,  courts
      have to deal with the same with an iron hand appropriately within  the
      framework of law. It is as much the duty of the prosecutor as  of  the
      court to ensure that full and material facts are brought on record  so
      that there might not be miscarriage of  justice.  (See  Shakila  Abdul
      Gafar Khan v. Vasant Raghunath Dhoble.)”
                                                            (Emphasis added)



  24. The said decision was also subsequently followed in a recent  decision
      of this Court in Sidhartha Vashisht alias Manu Sharma (supra), wherein
      one sentence in paragraph 188 is relevant for our purpose, which reads
      as under:

      “188. It is also important to note the active  role  which  is  to  be
      played by a court in a criminal trial. The court must ensure that  the
      Prosecutor is doing his duties to the utmost level of  efficiency  and
      fair play. This Court, in Zahira  Habibulla  H.  Sheikh  v.  State  of
      Gujarat, has noted the daunting task of a court in  a  criminal  trial
      while noting the most pertinent provisions of the law…..
                                                            (Emphasis added)




  25. In one of the earlier decisions of this Court in Mohanlal Shamji  Soni
      (supra), wherein Section 540 of Cr.P.C of 1898 which corresponds  with
      Section 311 Cr.P.C of 1973, this Court has pithily stated the  purport
      and intent of the said section, which is to be worked out at times  of
      need by the Criminal Courts in order to  ensure  that  justice  always
      triumphs. Paragraph 16 of  the  said  decision  is  relevant  for  our
      purpose which reads as under:

      “16. The second part of Section 540 as pointed out albeit imposes upon
      the court an obligation of summoning or recalling and re-examining any
      witness and the only condition prescribed is that the evidence  sought
      to be obtained must be essential to the just  decision  of  the  case.
      When any party to the proceedings points out the desirability of  some
      evidence being taken, then the court has to exercise its  power  under
      this provision — either discretionary or mandatory — depending on  the
      facts and circumstances of each case, having in  view  that  the  most
      paramount principle underlying this provision is  to  discover  or  to
      obtain  proper  proof  of  relevant  facts  in  order  to   meet   the
      requirements of justice. In this connection we  would  like  to  quote
      with approval the following views of Lumpkin, J. in Epps v. S.,  which
      reads thus:
           “… it is not only the right but the duty of the presiding  judge
           to call the attention of the witness to it, whether it makes for
           or against the prosecution; his aim being neither to punish  the
           innocent nor screen  the  guilty,  but  to  administer  the  law
           correctly …. Counsel seek only for their client’s  success;  but
           the judge must watch that justice triumphs.”
                                                            (Emphasis added)






  26. In the decision in Rajendra Prasad (supra), this Court pointed out the
      distinction between lacuna in the prosecution and a mistake  or  error
      inadvertently committed which can always be allowed to be set right by
      permitting parties concerned by the Criminal Courts in exercise of its
      powers conferred under Section 311 Cr.P.C or under Section 165 of  the
      Evidence Act. In paragraph 7, this Court has clarified as to what is a
      lacuna which is distinct and different from an error  committed  by  a
      public prosecutor in the course of trial. The  relevant  part  of  the
      said paragraph reads as under:

      “……A lacuna in the prosecution is not to be equated with  the  fallout
      of an oversight committed by a Public Prosecutor during trial,  either
      in producing relevant materials or in eliciting relevant answers  from
      witnesses…….”

  27. Again in paragraph 8, this Court has pointed out as to the duty of the
      Criminal Court to allow the prosecution to correct such errors in  the
      interest of justice. Paragraph 8 of the said judgment reads as under:

      “8. Lacuna in the prosecution  must  be  understood  as  the  inherent
      weakness or a latent wedge in the matrix of the prosecution case.  The
      advantage of it should normally go to the accused in the trial of  the
      case, but an oversight in the management of the prosecution cannot  be
      treated as irreparable lacuna. No party in a trial can  be  foreclosed
      from correcting errors. 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. After all, function of the criminal court is administration
      of criminal justice and not to count errors committed by  the  parties
      or to find out and declare who among the parties performed better.”
                                                            (Emphasis added)




  28. On behalf of the 9th respondent, Mr. Rana Mukherjee,  learned  counsel
      placed reliance upon the decision in Shiv Kumar  (supra).  By  relying
      upon  the  said  decision  the  learned  counsel  contended  that  the
      complainant cannot be permitted to conduct the prosecution  by  simply
      relying upon  Section  301  of  Cr.P.C.  When  we  consider  the  said
      submission of the learned  counsel  with  reference  to  the  decision
      relied upon by him, we  find  that  the  said  decision  can  have  no
      application to the case on hand. That was a case where the complainant
      engaged his counsel and wanted to conduct the chief  examination  when
      he was to be examined as a  witness  for  the  prosecution.  The  said
      prayer of the complainant was objected to on behalf of the accused  on
      the premise that a private counsel cannot  conduct  prosecution  in  a
      session’s trial. Though the trial Court allowed an application  to  be
      filed on behalf of the complainant, which was  also  endorsed  by  the
      public prosecutor, the revision filed by the accused was  allowed  and
      the order of the trial Court was set aside.  While  dealing  with  the
      said situation, this Court observed as under in paragraph 14:


      “14. It  is  not  merely  an  overall  supervision  which  the  Public
      Prosecutor is expected to perform  in  such  cases  when  a  privately
      engaged counsel is permitted to act on his behalf. The  role  which  a
      private counsel in such a situation can play is,  perhaps,  comparable
      with that of a junior advocate conducting the case of his senior in  a
      court. The  private  counsel  is  to  act  on  behalf  of  the  Public
      Prosecutor albeit the fact that he is engaged in the case by a private
      party. If the role of the Public Prosecutor is allowed to shrink to  a
      mere supervisory role the trial would  become  a  combat  between  the
      private party and the  accused  which  would  render  the  legislative
      mandate in Section 225 of the Code a dead letter.”

  29. As stated by us earlier the  facts  involved  in  the  said  case  are
      drastically different from what is prevailing in  the  case  on  hand.
      From what has been stated in paragraph 14 of the said  decision,  when
      the complainant wanted to conduct the case of the prosecution  itself,
      though with the permission of the public  prosecutor,  the  Court  has
      found that such a course, though was permissible to some extent before
      the Magistrate under  Section  302  of  Cr.P.C,  the  same  cannot  be
      permitted to the extent  allowed  to  by  the  Court  of  Sessions  by
      invoking Section 301 of Cr.P.C. We, therefore, do not find  any  scope
      to apply the said decision to the facts of this case.
  30. Learned counsel for  the  State  relied  upon  the  decision  in  Umar
      Mohammad and others vs. State of Rajasthan - (2007)  14  SCC  711,  in
      particular paragraph 38 of the said decision, and contended that  even
      by invoking Section 311 of Cr.P.C. the Court cannot come to the aid of
      the appellant. On a reading of paragraph 38, we do not find any  scope
      at all to apply the ratio laid down in the said decision to  the  case
      on hand. That was a case where PW-1 who was examined in Court in  July
      1994 later on filed an application  in  May  1995  stating  that  five
      accused persons named in the case were innocent and,  therefore,  they
      should be discharged by relying upon Section 311 of Cr.P.C.  The  said
      application was rejected by the trial Court, as well as  by  the  High
      Court in revision. Finding that 311 of Cr.P.C has  no  application  to
      the fact of the said case, this Court held that PW-1 having  been  won
      over by virtue of the fact that the application came to be filed after
      nine months of his chief examination, there  was  absolutely  no  bona
      fides and the rejection of  the  application  was  therefore  well  in
      order.

  31. Having noted the various decisions relied upon by the learned  counsel
      for the appellant referred to above on the interpretation of  Sections
      301 and 311 of Cr.P.C, as well as Section 165 of the Evidence Act,  it
      will have to be held that the various propositions laid  down  in  the
      said decisions support our conclusion that  a  Criminal  Court,  while
      trying an offence, acts in the interest of the society and  in  public
      interest. As has been held by  this  Court  in  Zahira  Habibullah  H.
      Sheikh (supra), a Criminal Court cannot remain a silent spectator.  It
      has got a participatory role to play and  having  been  invested  with
      enormous powers under Section 311 of Cr.P.C, as well as Section 165 of
      the Evidence Act, a trial Court in a situation like  the  present  one
      where it was brought to the  notice  of  the  Court  that  a  flagrant
      contradiction in the evidence of PW-18 who was a  statutory  authority
      and in whose presence the test identification parade was held, who  is
      also a Judicial Magistrate, ought to have risen  to  the  occasion  in
      public interest and remedied the situation by invoking Section 311  of
      Cr.P.C, by recalling the said witness with the  further  direction  to
      the public prosecutor for putting across the appropriate  question  or
      court question to the said witness and thereby set right  the  glaring
      error accordingly. It is unfortunate to state  that  the  trial  Court
      miserably failed to come alive to the realities as to  the  nature  of
      evidence that was being recorded and miserably failed in its  duty  to
      note the serious flaw and error in the recording of evidence of PW-18.
      In  this  context,  it  must  be  stated  that  the  prosecutor   also
      unfortunately failed in his duty in not noting the deficiency  in  the
      evidence. The observation of the High Court  while  disposing  of  the
      revision by making a casual statement that the  appellant  can  always
      file the written argument equally in our considered opinion,  was  not
      the proper approach to a situation like the  present  one.  What  this
      court wishes to ultimately convey to the courts below  is  that  while
      dealing with a litigation, in particular while conducting  a  criminal
      proceeding, maintain a belligerent approach instead of a wooden one.

  32. Having noted the above-mentioned  decisions  laid  before  us  by  the
      learned counsel for the parties on the scope of Section  311  Cr.P.C.,
      we wish to refer a recent decision rendered by this Court  in  Rajaram
      Prasad Yadav vs. State of Bihar  and  another  –  AIR  2013  SC  3081,
      wherein in paragraph 14 the law has been stated as under:

      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………. 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.

  33. Having regard to our above conclusions 
we find that the order  of  the
      trial Court, as well as that of the High Court cannot be sustained and
      while setting aside the same,
we direct the trial Court to recall  PW-
      18 and call upon the prosecutor to cross-examine the said  witness  on
      the aspect relating to the  statement,  namely,  “Sister  Mina  Baruwa
      identified accused Santosh Patnaik as the  said  suspect  gave  her  a
      slap, pulled her wearing Saree,  squeezed  her  breasts  and  did  not
      commit any other overt act” vis-à-vis the contents  of  the  statement
      recorded by PW-18 in Exhibit-8 at  the  time  of  test  identification
      parade when the appellant as PW-25 identified the respondent  No.9  as
      has been prayed for on behalf of the appellant  and  also  provide  an
      opportunity to the appellant to file  the  written  arguments  on  her
      behalf as provided under Section 301 of Cr.P.C.
Since  the  trial  was
      withheld by virtue of the pendency of this appeal till this date,  the
      trial Court is directed to comply with the  directions  as  above  and
      conclude  the  proceedings  in  accordance  with  law   expeditiously,
      preferably within three months from the date of production of the copy
      of this order. The appeal stands allowed on the above terms.

                                                     ………….……….…………………………..J.
                                    [Surinder Singh Nijjar]






                                                    ...……….…….………………………………J.
                                  [Fakkir Mohamed Ibrahim Kalifulla]


 New Delhi;
 December 05, 2013.

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