Page 1 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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Page 2 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 8

th

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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Page 3 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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Page 4 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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Page 5 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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Page 6 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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Page 7 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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Page 8 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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Page 9 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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Page 10 15.On behalf of 9

th

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 9

th

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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Page 11 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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Page 12 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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Page 13 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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Page 14 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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Page 15 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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Page 16 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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Page 17 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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Page 18 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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Page 19 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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Page 20 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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Page 21 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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Page 22 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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Page 23 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 9

th

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

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Page 24 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

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Page 25 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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Page 26 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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Page 27 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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Page 28 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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Page 29 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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Page 30 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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