Bombay High Court
Shaikh Majid Shaikh Javed vs The State Of Maharashtra on 13 January, 2020
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.2096 2019
Shaikh Majid Shaikh Javed,
Age 23 yrs., Occ. Labour,
R/o Near Bukhari Masjid,,
Parbhani, Tq. & Dist. Parbhani.
... Petitioner.
... Versus ...
The State of Maharashtra
Investigating Officer of
Nanalpeth Police Station,
Parbhani, Tq. & Dist. Parbhani.
... Respondent.
...
Mr. A.R. Syed, Advocate for appellant
Mr. P.K. Lakhotiya, APP for respondent
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 13th JANUARY, 2020 PER COURT : 1 Present petition has been filed by the original accused
challenging the order dated 13.12.2019 passed below Exh.47 by learned Additional Sessions Judge, Parbhani in Special Case (POCSO) No.28/2016. 2 The factual matrix leading to the petition are that the present ::: Uploaded on - 16/01/2020 ::: Downloaded on - 09/06/2020 07:23:51 ::: 2 Cri.WP_2096_2019 applicant is facing the trial for offence under Section 11, 11(1) punishable under Section 12 of Protection of Children from Sexual Offences Act, 2012 and offence punishable under Section 354, 354-A, 354-D, 504 of the Indian Penal Code. Charge came to be framed against the present applicant at Exh.10 on 19.01.2019. Thereafter, the evidence of certain witnesses have been recorded. Statement of the accused under Section 313 of Cr.P.C. has also been recorded after the prosecution closed its side for evidence. Thereafter, on the day of the pronouncement of the Judgment it appears that at Exh.47 an application was filed on behalf of the prosecution for alternation of the charge and framing of charge, in addition for the offence under Section 7 of the POCSO Act.
3 The application was objected by the present petitioner by saying that the ingredients of Section 7 punishable under Section 8 of POCSO Act are not attracted, as the contents of the First Information Report as well as the evidence of the victim never disclose that the accused had caught hold of her hand for sexual intent, as well as the PW 3 has also not disclosed the same.
4 After hearing both sides the learned Trial Judge has stated that the case of the prosecution is that the accused had caught hold of hand of the victim by uttering words and it is covered in Section 7 of POCSO Act and ::: Uploaded on - 16/01/2020 ::: Downloaded on - 09/06/2020 07:23:51 ::: 3 Cri.WP_2096_2019 therefore, the charge needs to be altered. The said order was passed on 13.12.2019 and on the same day the charge was altered. Contents of the altered charge were read over and explained to the accused in vernacular and his statements were recorded. Obviously, it was in the negative of the acceptance of the guilt. This alteration of charge as well as the order passed below Exh.47 is the subject-matter of this petition to challenge. 5 Learned Advocate Mr. A.R. Syed appearing for the appellant vehemently submitted that Section 7 of the POCSO Act defines word "sexual assault", as follows :
"7. Sexual assault - Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."
The learned Trial Judge has tried to cover it under "or does any other act with sexual intent which involves physical contact without penetration".
6 The facts of the case were cleared since beginning and neither the prosecution has stated that nor in the impugned order the learned Trial Judge has stated that the charge remained to be framed for the offence punishable under Section 8 of the POCSO Act. The application has been ::: Uploaded on - 16/01/2020 ::: Downloaded on - 09/06/2020 07:23:51 ::: 4 Cri.WP_2096_2019 given when the case was for pronouncement of Judgment. The vital right of the present applicant has been taken away, because Section 8 prescribes for the minimum sentence of three years and prescribes that it may extend to five years and shall also be liable to pay fine. Further Section 29 of the POCSO Act prescribes for raising of presumption for the offence under Section 7 of POCSO Act and it would then be for the accused to rebut the said presumption. It is also submitted that the applicant is having apprehension that the learned Trial Court has made up his mind to convict the accused. When the act alleged was only of catching hold of the hand and as per the definition of 'sexual assault' under Section 7 of the Act, something more is required. Taking into consideration the evidence of victim, that she was on the road when alleged incident took place. There could not have been any such intent as contemplated under Section 7 of the Act. He relied on the decision in Rahul Vinod Choudhary vs. State of Maharashtra in Criminal Appeal No.164 of 2016 decided by this Court (Bench at Nagpur), wherein, the conviction under Section 7 and 8 of the POCSO Act came to be set aside, on the ground that the alleged incident had taken place on road. He, therefore, prays for setting aside the order below Exh.47 as well as the alteration in the charge.
7 Learned APP submits that the interpretation as has been tried to ::: Uploaded on - 16/01/2020 ::: Downloaded on - 09/06/2020 07:23:51 ::: 5 Cri.WP_2096_2019 be made on behalf of the applicant is not contemplated under Section 7 of the Act. Further, the present applicant had every scope under Section 217 of Cr.P.C..
8 The application was filed by the prosecution under Section 216(1) of Cr.P.C. which provides that any Court may alter or add to any charge at any time before Judgment is pronounced. It is not in dispute that when the application Exh.47 was filed on 13.12.2019 though the said case was for pronouncement of Judgment, yet the Judgment was not pronounced and therefore, definitely, the said application was maintainable under Section 216(1) of Cr.P.C.. Now, as regards the ingredients of Section 7 of the POCSO Act, whether attracted or not is concerned, it is to be noted, that the learned Advocate for the applicant is trying to canvass is still available to him, at the time of final hearing of the matter. What is required to be seen for framing of a charge, whether the matter would proceed on the accusations, those have been made and whether offence is prima facie made out or not. Section 211 of Cr.P.C. deals with contents of charge and Section 212 of Cr.P.C. deals with particular as to time, place and person to be included in the charge. Further, in Section 213 of Cr.P.C. the particulars which may be sufficient to understand the accused, the nature of the charge he is required to neat at the trial will have to be given, when the nature of the case is such that particulars ::: Uploaded on - 16/01/2020 ::: Downloaded on - 09/06/2020 07:23:51 ::: 6 Cri.WP_2096_2019 mentioned in Section 211 and 212 of the Code do not give the accused sufficient notice of the matter. Now, merely because addition of the charge prescribes for minimum sentence and a presumption to be raised is concerned, it may not come in the way of the powers of the Court to alter the charge. If the Court comes to the conclusion that the ingredients are attracted, then the charge may be altered in view of Section 216 (1) of Cr.P.C..
9 Now, the only question is, Whether the rights of the accused are then protected or not ? In view of the fact that the Court had altered the charge, then the concerned Court should proceed and take into consideration the provisions of Section 217 of the Code. When a charge is altered or added to by the Court after the commencement of the trial, then the Court should give an opportunity to recall or re-summoned and examine with reference to such alteration or addition of the charge, any witness who may have been examined and this opportunity has to be given to prosecutor as well as accused. The only circumstance, when the recalling, re-summoning and examining of the witness in such situation can be refused by the Court back to by giving reasons in writing. When it considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends of justice. In this ::: Uploaded on - 16/01/2020 ::: Downloaded on - 09/06/2020 07:23:51 ::: 7 Cri.WP_2096_2019 case, it will not be out of place to mention here that when earlier there may be the same facts on record, yet, the Court had not framed the charge for the offence punishable under Section 8 of taking into consideration the definition under Section 7 of the POCSO Act. Therefore, while cross-examining the victim, it was not necessary for learned Advocate for the defence to ask anything in respect of intention. But when now the learned Judge has decided and has altered the charge for the offence punishable under Section 8 read with Section 7 of the POCSO Act, then definitely he has to give an opportunity to the accused, to recall or re-summon and examine any witness if the accused intent to examine after the alteration of the charge. The concerned Court cannot deny such opportunity to the applicant at any costs. With these directions that the learned Trial Judge should give an opportunity to the present applicant as contemplated under Section 217 of Cr.P.C. and in view of the observations made herein above, the writ petition stands disposed of.
( Smt. Vibha Kankanwadi, J. ) agd ::: Uploaded on - 16/01/2020 ::: Downloaded on - 09/06/2020 07:23:51 :::