POCSO Act has been enacted as a self contained comprehensive legislation interalia to provide for protection of children from the offences of sexual assault and sexual harassment : High court of Allahabad
Petitioner seek a direction to the respondent to recall of witness power to be invoked to meet the ends of justice for strong and valid reasons with cautions and circumspection, and the same issue was held in the judgement passed by a single bench judge Hon’ble Dr Yogendra Kumar Srivastava, J. In the matter, Jeeshan Ansari V/s State of U.P. and Another [APPLICATION U/S 482 No. – 17844 of 2021] dealt with an issue mentioned above. The Heard Sri M.P. Singh Yadav, holding the brief of Sri Mohammad Waseem, learned counsel for the applicant and Sri Vinod Kant, learned Additional Advocate General along with Sri Arvind Kumar, learned Additional Government Advocate appearing for the State-opposite party. The order dated 12.08.2021 dismissing the application filed by the applicant herein under Section 311 Cr.P.C. has taken notice of the fact that the examination-in-chief of PW-2 (victim) was recorded on 21.01.2021 and on the same date the counsel for the accused-applicant had cross-examined her. On the scope of powers to be exercised under Section 311 Cr.P.C., reliance has been placed on the decision of this Court in Ajmer vs. the State of U.P.2, and also a recent decision dated 22.11.2021 in Manish vs. the State of U.P. and another. The facts as noticed by the court below in the order dated 12.08.2021 whereunder the application under Section 311 has been rejected, indicate that the examination-in-chief of the victim PW-2 was recorded on 29.01.2021 and her cross-examination was also completed by the counsel for the accused-applicant on the same date. The court perused the facts and arguments presented The power conferred has been held to be discretionary 10 and is to enable the court to determine the truth after discovering all relevant facts and obtaining proper proof thereof to arrive at a just decision in the case. The power conferred under Section 311 is to be invoked by the court to meet the ends of justice, for strong and valid reasons and it is to be exercised with great caution and circumspection.
Court No. 85 Case : APPLICATION U S 482 No. 178421 Applicant : Jeeshan @ Jeeshan Ansari Opposite Party : State of U.P. and Another Counsel for Applicant : Mohammad Waseem Counsel for Opposite Party : G.A Hon ble Dr. Yogendra Kumar Srivastava J Heard Sri M.P. Singh Yadav holding brief of Sri Mohammad Waseem learned counsel for the applicant and Sri Vinod Kant learned Additional Advocate General along with Sri Arvind Kumar learned Additional Government Advocate appearing for the State opposite party. The present application under Section 482 Cr.P.C. has been filed seeking to quash the order dated 12.08.2021 passed by the Additional Sessions Judge Special JudgeN IPC and Section 3 4 of Protection of Children from Sexual Offences Act 20121 Police Station Hafizganj District Bareilly on the application filed by the applicant under Section 311 Cr.P.C. dated 10.08.2021 and also to direct the court below to re consider the application filed by the applicant under Section 311 Cr.P.C. dated 10.08.2021 The order dated 12.08.2021 dismissing the application filed by the applicant herein under Section 311 Cr.P.C. has taken notice of the fact that the examination in chief of PW 2 victim) was recorded on 21.01.2021 and on the same date the counsel for the accused applicant had cross examined her. The court has also recorded that the accused applicant has sought recall of the witness who has been already examined on the earlier date as PW 2. It has also been taken note that the cross examination of the other witnesses is continuing and 1 POCSO Act information regarding the questions which are sought to be put to PW 2 can be elicited from the other witnesses. Considering that the matter is pending since the year 2018 an inference has been drawn that the application filed under Section 311 Cr.P.C is only to delay the proceedings. The court below further taking note that the trial is under POCSO Act which contains a provision for concluding the proceedings expeditiously has concluded that there was no reason to allow the application under Section 311 Cr.P.C. seeking recall of the witness and accordingly the same has been rejected. Learned Additional Advocate General supporting the order passed by the court below has pointed out that the testimony of the PW 2 having already been recorded long back and no plausible ground having been made out by the accused applicant for recall of the witness the application under Section 311 Cr.P.C. has rightly been turned down. Learned Additional Advocate General also points out that the POCSO Act is a special Act which contains a specific provision for expeditious disposal of trial. On the scope of powers to be exercised under Section 311 Cr.P.C. reliance has been placed on the decision of this Court in Ajmer vs. State of U.P.2 and also a recent decision dated 22.11.2021 in Manish vs. State of U.P. and another3 The facts as noticed by the court below in the order dated 12.08.2021 whereunder the application under Section 311 has been rejected indicate that the examination in chief of the victim PW 2 was recorded on 29.01.2021 and her cross examination was also completed by the counsel for the accused applicant on the same date. The court below has also noticed that the questions which are proposed to put to the 2 2021ACC 409 3 Application U S 482 No. 234221 decided on 22.11.2021 aforesaid witness as stated in the application under Section 311 have already been put to the witness earlier on behalf of the defence counsel. Further the fact that the cross examination of the other witnesses was still continuing and that the information with regard to the age of the brothers and sisters and other family members of the victim could be elicited from them has also been taken into consideration to draw a conclusion that the application under Section 311 had been filed only with a view to delay the proceedings. Another fact which has been taken note of is that the matter is pending since the year 2018 and the proceedings being under the POCSO Act the same were required to be concluded In this regard it would be relevant to take notice of the fact that the POCSO Act has been enacted as a self contained comprehensive legislation interalia to provide for protection of children from the offences of sexual assault sexual harassment and pornography with due regard for safeguarding the interest and well being of the child at every stage of the judicial process incorporating child friendly procedures for reporting recording of evidence investigation and trial of offences and provision for establishment of Special Court for speedy trial of The relevant provisions of the POCSO Act which shall shortly be referred to are being extracted below: “28. Designation of Special Courts.For the purposes of providing a speedy trial the State Government shall in consultation with the Chief Justice of the High Court by notification in the Official Gazette designate for each district a Court of Session to be a Special Court to try the offences under the Provided that if a Court of Session is notified as a children s court under the Commissions for Protection of Child Rights Act 2005 or a Special Court designated for similar purposes under any other law for the time being in force then such court shall be deemed to be a Special Court under this section 2) While trying an offence under this Act a Special Court shall also try an offence other than the offence referred to in sub section 1)] with which the accused may under the Code of Criminal Procedure 1973 be charged at the same trial 3) The Special Court constituted under this Act notwithstanding anything in the Information Technology Act 2000shall have jurisdiction to try offences under section 67 B of that Act in so far as it relates to publication or transmission of sexually explicit material depicting children in any act or conduct or manner or facilitates abuse of children online 33. Procedure and powers of Special Court. A Special Court may take cognizance of any offence without the accused being committed to it for trial upon receiving a complaint of facts which constitute such offence or upon a police report of such 2) The Special Public Prosecutor or as the case may be the counsel appearing for the accused shall while recording the examination in chief cross examination or re examination of the child communicate the questions to be put to the child to the Special Court which shall in turn put those questions to the child 3) The Special Court may if it considers necessary permit frequent breaks for the child during the trial 4) The Special Court shall create a child friendly atmosphere by allowing a family member a guardian a friend or a relative in whom the child has trust or confidence to be present in the court 5) The Special Court shall ensure that the child is not called repeatedly to testify in the court 6) The Special Court shall not permit aggressive questioning or character assassination of the child and ensure that dignity of the child is maintained at all times during the trial 7) The Special Court shall ensure that the identity of the child is not disclosed at any time during the course of investigation or trial Provided that for reasons to be recorded in writing the Special Court may permit such disclosure if in its opinion such disclosure is in the interest of the child Explanation. For the purposes of this sub section the identity of the child shall include the identity of the child s family school relatives neighbourhood or any other information by which the identity of the child may be revealed 8) In appropriate cases the Special Court may in addition to the punishment direct payment of such compensation as may be prescribed to the child for any physical or mental trauma caused to him or for immediate rehabilitation of such child 9) Subject to the provisions of this Act a Special Court shall for the purpose of the trial of any offence under this Act have all the powers of a Court of Session and shall try such offence as if it were a Court of Session and as far as may be in accordance with the procedure specified in the Code of Criminal Procedure 1973(74) for trial before a Court of Session 35. Period for recording of evidence of child and disposal of case. The evidence of the child shall be recorded within a period of thirty days of the Special Court taking cognizance of the offence and reasons for delay if any shall be recorded by the Special Court 2) The Special Court shall complete the trial as far as possible within a period of one year from the date of taking cognizance of the offence The POCSO Act which is a special enactment contains provisions for designation of Special Courts under Chapter VII and sub sectionof Section 28 provides for designation of a Court of Session to be a Special Court for each district to try the offences under the Act for the purposes of providing a speedy The procedure and powers of Special Courts and recording of evidence is contained under Chapter VIII of the POCSO Act. Section 33empowers the Special Court to take cognizance of any offence without the accused being committed to it for trial upon receiving a complaint of facts which constitute such offence or upon a police report of such Section 35 is with regard to the period for recording of evidence of child and disposal of case and sub section of Section 35 provides that the Special Court shall complete the trial as far as possible within a period of one year from the date of taking cognizance of the offence It would be seen that the POCSO Act has been enacted as a self contained comprehensive legislation to provide for protecting of children from the sexual assault sexual harassment and pornography with due regard for safeguarding the interest and well being of the child at every stage of the judicial process incorporating child friendly procedures for reporting recording of evidence investigation and trial of offences and also provision for establishment of Special Courts for speedy trial of such offences. 14. One of the principal objectives of enactment of the POCSO Act as a special Act being for providing a special procedure to ensure speedy trial so as to protect the children in respect of certain specified offences the provisions of the enactment would have to be interpreted in a manner so as to effectuate the object of the enactment and not to frustrate the 15. Having regard to the aforesaid the conclusion drawn by the court below with regard to the application under Section 311 having been filed so as to delay the proceedings cannot be said to be without basis in view of the object of ensuring the speedy trial under the special Act 16. As regards the nature and scope of the power of the court to summon examine recall and re examine any witness in the context of Section 311 Cr.P.C. the said provisionwas subject matter of consideration in Mohanlal Shamji Soni v Union of India and another4 and it was held that the power in this regard is in the widest terms exercisable at any stage so long as the court is in seisin of the proceeding as may be considered essential for a just decision of the case. In U.T. of Dadra and Nagar Haveli v Fatehsinh Mohansinh Chauhan5 while considering the power of the court to summon material witnesses under Section 311 Cr.P.C. it was opined that the said power can be exercised only with the object of finding out the truth or obtaining proper proof of facts which may lead to a just and correct decision. The nature scope and object of Section 311 Cr.P.C. came to be extensively discussed in Zahira Habibullah SheikhACC 409 3 Application u s 482 No. 234221 decided on 22.11.2021