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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.  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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.  

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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  

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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  

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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  

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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  

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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  

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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  

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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.    

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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.

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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.  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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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