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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/

 

English: Wheel of Konark temple

English: Wheel of Konark temple (Photo credit: Wikipedia)

 

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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