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.
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
JUDGMENT
Fakkir Mohamed Ibrahim Kalifulla, J.1
Decided on;December 05, 2013]
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.
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]
Kalifulla]
........................................................J.
[Fakkir Mohamed Ibrahim
New Delhi;
December 05, 2013.
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