SISTER MINA LALITA BARUWAversusSTATE OF ORISSA AND OTHERS

                        [2013] 16 S.C.R. 788


A                 SISTER MINA LALITA BARUWA
                                   v.
                STATE OF ORISSA AND OTHERS
             (CRIMINAL APPEAL NO. 2044 OF 2013)

                        DECEMBER 05, 2013
B
     [SURINDER SINGH NIJJAR ANO FAKKIR MOHAMED
                IBRAHIM KALIFULLA, JJ.]

         Code of Criminal Procedure, 1973 - ss. 301 and 311 -
C Criminal prosecution - Trying charge u/s. 376(2}{g) !PC -
   Evidence of Statutory Authority (PW 18) who had conducted
   Test Identification Parade, not in consonance with the record
   of Test Identification Parade - Application of prosecutrix for
   recalling the evidence of that witness - Dismissed by courts
D below in view.of s. 301 - Held: There is serious irregularity. in
   the orders passed by courts below - The courts should have
   made an attempt to reconcile ss. 301 and 311 and ensured
   that the trial proceeded in right direction - Trial court directed
   to recall the evidence of PW 18 and call upon the prosecutor
E to cross-examine the witness on the disputed aspect of his
 · statement and provide opportunity to the prosecutrix to file
   written arguments as provided uls. 301.

       Criminal Trial - Role of court - While conducting a
  criminal proceeding, the courts should maintain a belligerent
F approach, instead of a wooden one.

      In a criminal trial, where a charge u/s. 376(2)(g) IPC
  was alleged, the prosecutrix/PW25 in the case,
  approached the public prosecutor alleging that PW-18, (a
G Judicial Officer as a statutory authority), who had held the
  Identification Parade, made a wrong statement before the
  Court, not in consonance with the records of the Test
  Identification Parade and requested the Public
  Prosecutor to confront PW-18 in that respect. Since the
H                                 788
 SISTER MINA LALITA BARUWA v, STATE OF ORISSA             789


Public Prosecutor did not take any steps, the appellant          A
moved an application for recalling PW-18. The application
was rejected as not maintainable. When the appellant
approached High Court against rejection of her
application, it was held that in view of s. 301 Cr.P.C. her
application was not maintainable. Hence the present              B
appeal.

    Allowing the appeal, the Court

     HELD: 1. In criminal jurisprudence, while the offence
is against the society, it is the unfortunate victim who is      C
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           D
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      E
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.           F
Neither the prosecution nor t~e Court should remain a
silent spectator in such situations. 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              G
escape and innocent is not punished. [Para 19] [801-F-
H; 802-A-B, C-D]

    2. The 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          H
   790      SUPREME COURT REPORTS             [2013] 16 S.C.R.

A 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 th~ record
  of identification parade, namely, Exhibit-8 and thereby
B provided scope for serious illegality b~ing committed for
  dispensing justice. [Para 16] [799-G-H; 800-A-B]

       3. 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
C certainly cause a serious miscarriage of justice, if allowed
  to remain. The High Court adopted a very casual
  approach instead of attempting to find out as to the
  appropriate procedure which the trial Court stiould have
  followed in a situation like this. The High Court also
D 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
E 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
F 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. There is
  serious irregularity in the orders impugned in this appeal.
G [Para 17] [800-D-H]

      4. 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
H manner, ought to have examined as to how the oral
  SISTER MINA LALITA BARUWA v. STATE OF ORISSA           791


 evidence of PW-18 which did not tally with Exhibit-8, the      A
 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       B
 by putting appropriate Court question. 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, the courts below should -have              c
 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. The Courts below should have made an
                                                                0
 attempt to reconcile Sections 301 and 311 Cr.P .C. in such
 peculiar situations and ens~red that the trial proceeded
 in the right direction. [Para 18] [801-A-E]
       5. A Criminal Court, w~ile trying an offence, acts in
  the interest of the society and in public interest. A         E
  Criminal Court cannot rema'n a silent spectator. It has got
  a participatory role to play a.nd 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 situation in present case where it was     F
  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     G
  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
                                                                H
    792    SUPREME COURT REPORTS               [2013] 16 S.C.R.

A said witness and thereby set right the glaring error
  accordingly. [Para 31] [811-H; 812-A-D]
       6. 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
8
  serious flaw and error in the recording of evidence of
  PW-18. The prosecutor also failed in his duty in not noting
  the deficiency in the evidence. Tne observation of the
  High Court while disposing of the revision by making a
  casual'statement that the appellant can always file the
C written argument, was also not the proper approach to a
  situation like the present one. While dealing with a
  litigation, in particular while conducting a criminal
  proceeding, the courts should maintain a belligerent
  approach instead of a wooden one. [Para 31] [812-D-F]
D
       J.K. International vs. State (Govt. of NCT of Delhi) and
  Ors. (2001) 3 SCC 462: 2001 (~) SCR 90; Zahira Habibullah
  H. Sheikh and Anr. vs. State of Gujarat and Ors. (2004) 4 SCC
  158: 2004 (3) SCR 1050; Sidhartha Vashisht alias Manu
E Sharma vs. State (NCT of Delhi) (2010) 6 SCG 1: 2010 (4)
  SCR 103; Mohan/al Shamji Soni vs. Union of India and Anr.
  (1991) Supl.1 SCC 271: 1991 (1) SCR 712; Rajendra
  Prasad vs. Narcotic Cell (1999) 6 SCC 110: 1999 (3) SCR
  818; Rajaram Prasad Yadav vs. State of Bihar and Anr. AIR
F 2013 SC 3081 - relied on.

         Shiv Kumar vs. Hukam Chand and Anr. (1999) 7 SCC
    467: 1999 (2) Suppl. SCR 81; Umar Mohammad and Ors.
    vs. State of Rajasthan (2007) 14 SCC 711: 2007 (13) SCR
    273 - distinguished.
G
       7. While under Section 301(2) Cr.P.C., 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
H the trial Court in order to arrive at a just decision to resort
 SISTER MINA LALITA BARUWA v. STATE OF ORISSA             793


to an appropriate measure befitting the situation in the         A
matter of examination of witnesses. Therefore, a reading
Sections 301 and 311 together keeping in mind a
situation like the present one, 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.        8
In other words even if in the consideration of the trial
Court invocation of Section 301 (2) was not permissible,
~he 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.       c
[Para 21] [803-C-F]

    8. The order of the trial Court, as well as that of the
High Court cannot be sustained and while setting aside
the same, the trial Court is directed to recall PW-18 and
call upon the· prosecutor to cross-examine the said              D
witness on the aspect relating to the statement, vis-a-vis
the contents of the statement recorded by PW-18 in
Exhibit-8 at the time of testidentification parade when the
appellant as PW-25 identified respondent No.9 as has
been prayed for on behalf of the appellant and also              E
provide an opportunity to the appellant to file the written
arguments on her behalf as provided under Section 301
of Cr.P.C. [Para 33] [814-8-D]

    K. Pandurangan vs. S.S.R. Velusamy and Anr. (2003) 8
SCC 625; Suga Ram alias Chhuga Ram vs. State of
Rajasthan and Ors. (2006) 8 SCC 641: 2006 (6) Suppl. SCR
329 - referred to.
                     Case Law Reference:
     (2003) 8 sec 625            referred to        Para 13
     2006 (6) Suppl. SCR 329 referred to            Para 13
     1999 (2) Suppl. SCR 81      distinguished      Para 15
     2001 (2) SCR 90             relied on          Para 22
    794       SUPREME COURT REPORTS              [2013] 16 S.C.R.


A         2004 (3) SCR 1050          relied on         Para 23
          2010 (4) SCR 103           relied on         Para 24

          1991 (1) SCR 712           relied on         Para 25
          1999 (3) SCR 818           relied on         Para 26
B
          2007 (13) SCR 273          distinguished     Para 30

          AIR 2013 SC 3081           relied on         Para 32

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
c   No. 2044 of 2013

        From the Judgment and Order dated 05.01.2012 of the
    High Court of Orissa at Cuttack in CRLMC No. 1746 of 2011.

      Colin Gonsalves, Amiy Shukla, Jyoti Mendiratta, Rana
D Mukherjee, Merusagar Samantaray, Kasturika Kaumudi,
  Shibashish Misra and Amit Sharma for the Appearing Parties.

          The Judgment of the Court was delivered by

E        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
F   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.
G      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
H Home called 'Divyajyoti Pastoral Centre', Kanjamendi of district
 SISTER MINA LALITA BARUWA v. STATE OF ORISSA               795
     [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

Kandhamal, fearing attack by the unruly mob took shelter in the    A
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
                                                                   8
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, ;illeged to have
raped her while the other accused aided for the commission         C
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 D
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
Baiiguda Sub-Divisional Hospital and that her wearing apparels
were sealed and sent to State FSL, Bhubneswar along with the · E
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   F
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       G
the Sub-Divisional Judicial Magistrate, Cuttack on that date. In
the course of examination of PW-18, the prescribed format of
Schedule XLVll 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      H
    796      SUPREME COURT REPORTS               [2013] 16 S,C.R.


A of test identification parade, conducted by him, was ma~ked 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
8 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
C 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
o         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
E   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-a-vis respondent
    No.9,. The learned senior counsel submitted that since such a
F   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
G   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
H   counsel further pointed out that when the appellant was cross-
  SISTER MINA LALITA BARUWA v. STATE OF ORISSA                  797
      [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
examined, she specifically refuted the above version of PW-             A
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              8
     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 rap~d me on the date
     of occurrence at Jana Vikash Kendra ..... "
                                                                        c
       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      D
 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             E
 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.         F

    · 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 Hi,gh Court while making reference to Section 301 of
Cr.P.C., took the view that the appellant as an informant had a         G
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 ~he authority granted to an
informant or a private person under Section 301 Cr.P.C. 'fhe
High Court proceeded further and stated that reposing                   H
    798      SUPREME COURT REPORTS                 [2013] 16 S.C.R.


A 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
B 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
C   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
D   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
E   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
F   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
G 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
H
  SISTER MINA LALITA BARUWA v. STATE OF ORISSA                 799
      [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

Judge, as well as, the High Court in doing so while passing the        A
orders impugned in this appeal, persuaded the appellant to
knock at the doors of this Court. Reliance was placed upon the
decisions in Mohan/al 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             B
Ma nu 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 ar.id others - (2006) 8 SCC 641.           c
     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        D
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               E
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 sec 467, contended that the appellant           F
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-         G
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      H
    800       SUPREME COURT REPORTS                  [2013] 16 S.C.R.


A 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
B 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
C 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
D   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
E   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
F   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
G   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.
H
 SISTER MINA LALITA BARUWA v. STATE OF ORISSA                  801
     [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

      18. We are convinced that the grievances as projected by         A
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
Cf.P.C. in a blind folded manner, ought to have examined as            B
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            c
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 re.cords of his own, we          0
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
                                                                       E
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      F
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         G
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
                                                                       H
    802       SUPREME COURT REPORTS                  [2013] 16 S.C.R.


A 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
B 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
c 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
0
  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.
E
          "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
F         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
G         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.

H         311. Power to summon material witness, or examine
    SISTER MINA LALITA BARUWA v. STATE OF ORISSA                 803
        [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

      person present.- Any Court may, at any stage of any               A
      inquiry, trial or other proceeding under this Code, summon
      any p~rson 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           B
      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         C
  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            D
  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                 E
  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          F
· 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.                G

      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                   H
    804       SUPREME COURT REPORTS                  [2013) 16 S.C.R.

A 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 hot be heard at all even at the risk of the criminal
          proceedings initiated by him being quashed. It is no solace
B
          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
c          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
D          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
E
          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
F         police. It has to E>e stated further, that the court is given
          PO'A!er 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
G         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
H
   ~



  SISTER MINA LALITA BARUWA v. STATE OF ORISSA                   805 .
      [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

       aggrieved private person is not altogether to be eclipsed          A
       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           B
       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)          C
. 4 sec 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          D
  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             E
         whatever is being stated by the witnesses. Section 311 of
         the Code and Section 165 of the Evidente Act confer vast
         and wide powers on presiding officers of court·to elicit all·
         necessary materials by playing· an active role in the
         evidence-coll.ecting process. They -have to monitor the
         proceedings in aid of justice in a manner that something,
                                                                          F
         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        G
         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       H
    806       SUPREME COURT REPORTS                 [2013] 16 S.C.R.


A         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
B
          Evidence Act is in a way complementary to its power under
          Section 311 of the Code. The section consists of two parts
          i.e.: (1) giving a discretion to the court to examine the
          witness at any stage, and (it) the mandatory portion which
          compels the court to examine a witness if his evidence
c         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 Mohan/al
          v. Union of India this Court has observed, while
          considering the scope and ambit of Section 311, that the
D         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
E         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 ...... .
F
          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
G
          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
H         to arrive at a just decision in the case.
 SISTER MINA LALITA BARUWA v. STATE OF ORISSA                   807
     [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
    56. As pithily stated in Jennison v. Baker. (All ER p. 1006d)       A

    "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             B
    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     C
    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         D
    facts are brought on record so that there might not be
    miscarriage of justice. (See Shakita Abdul Gafar Khan v.
    Vasant Raghunath Dhoble.)"

                                               (Emphasis added)
                                                      I                 E
    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:
                                                                        F
    "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
    Habibu/la H. Sheikh v. State of Gujarat, has noted the              G
    daunting task of a court in a criminal trial while noting the
    most pertinent provisions of the law..... '

    (l~mphasis added)

    25. In one of the earlier decisions of this Court in Mohan/al       H
    808       SUPREME COURT REPORTS                 [2013] 16 S.C.R.


A   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 ofthe 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
B 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
c         condttion prescribed is that the evidence sought to be
          obtained must be essential to the just decision of the case.
          When any party tq the proceedings points out the
          desirability of some evidence being taken, then the court
          has to exercise its power under this provision - either
D         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
E         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 judg·e to call the attention of the witness
F                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."
G
                                                   (Emphasis added) ·1

                 26. In the decision in Rajendra Prasad (supra), this I
                 Court pointed out the distinction between lacuna in       1




H                the prosecution and a mistake or error inadvertently
  SISTER MINA LALITA BARUWA v. STATE OF ORISSA                809
      [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

            committed which can al~ays be allowed to be set A
            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 · B
            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   C
     the fallout of an oversight committed by a Public
     Prosecutor during trial,· either in producing relevant
     materials or in eliciting· relevant answers from
   . witnesses .. : .... n

     27. Again in paragraph 8, this Court has pointed out as to       D
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 E
     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
                                                                     F
     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 · G
     and declare who among the parties performed better."

     (Emphasis added)

     28. On behalf of the 9th respondent, Mr. Rana Mukherjee,         H
     810       SUPREME COURT REPORTS                 [2013] 16 S.C.R.


A .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
B 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
c. 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
0
   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
E          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
F          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
G          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
H on hand. From what has been stated in paragraph 14 of the
   SISTER MINA LAUTA BARUWA v. STATE OF ORISSA                  811
       [FAKKIR MOHAMED IBRAHIM KAUFULLA, J.)

said decision, when the complainant wanted to conduct the              A
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          B
Section 301 of Cr.P.C. We, therefore, do not find any scope
to apply the said decision to the facts of this case.                  .'71

      30. Learned counsel for the State relied upon the decision
in Umar Mohammad and others vs. State of Rajasthan -
 (2007) 14 sec 711, in particular paragraph 38 of the said             c
 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                  D
 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.         E
 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
 tides and the rejection of the application was therefore well in      F
 order.

     31. Having noted the various decisions relied upon by the
learned coun~el 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      G
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 Habibul/ah H. Sheikh
(supra), a Criminal Court cannot remain a silent spectator. It         H
    812      SUPREME COURT REPORTS                  [2013) 16 S.C.R.


A 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
B 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
c 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
D 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
E 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
F 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
G 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- Al R 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
H         show that widest of the powers have been invested with
SISTER MINA LALITA BARUWA v. STATE OF.ORISSA 813
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
· the Courts when it comes to the question of summoning a           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                   B
  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         c
  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       0
 ·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                E.
  provision, namely, for achieving a just decision of the case
  as noted by us earlier. The power vested under the sai9
  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           F
  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          G
  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       H
    814       SUPREME COURT REPORTS              [2013) 16 S.C.R.


A         needless to state that exercise of such power should be
          made judicially and also with extreme care and caution.

        33. Having regard to our a5ove 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
8
  direct the trial Cou_rt 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
C did not commit any other overt act" vis-a-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
D 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
E within three months from the date of production of the copy of
  this order. The appeal stands allowed on the above terms.

    Kalpana K. Tripathy                              Appeal allowed.