Uttarakhand High Court
Deepak Danu vs State Of Uttarakhand And Another on 13 October, 2022
Author: Ravindra Maithani
Bench: Ravindra Maithani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision No. 491 of 2022
Deepak Danu ....Revisionist
Vs.
State of Uttarakhand and Another ..... Respondents
Mr. P.C. Petshali and Mr. Kaushal Sah Jagati, Advocates for the
revisionist.
Mr. V.S. Rathore, A.G.A. for the State of Uttarakhand.
Ms. Sonali Shah, Advocate holding brief of Mr. B.N. Molakhi, Advocate
for the accused.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral) The challenge in this revision is made to order dated 20.08.2022, passed in Special Sessions Trial No.412 of 2021, State Versus Goldy Rajiv Santhoji, by the court of Additional Sessions Judge/FTSC/Rudrapur, District-Udham Singh Nagar ("the case"). The revisionist is aggrieved by that portion of order, by which charge under Section 8 instead of Section 9 of the Protection of Children from Sexual Offences Act, 2012 ("the POCSO Act") has been framed on the accused and also that portion of order is put to challenge, by which PW1 and PW2 have been summoned for further cross- examination.
2. Heard learned counsel for the parties and perused the record.
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3. Facts necessary to appreciate the controversy, briefly stated, are as follows: Parents- teachers association of one residential school filed an FIR on 01.07.2015 at Police Station Pulbhatta under Sections 377, 511 IPC and Section 9(f)/10 of the POCSO Act. Based on this FIR, investigation was conducted and police filed a final report. Subsequently, by order dated 06.05.2021, of this Court, passed in Criminal Misc. Application No.31 of 2021, the final report was rejected and further investigation was ordered (It has been recorded in the chargesheet). Further investigation was carried out. Thereafter, chargesheet under Sections 377 IPC and Section 5(f) of the POCSO Act has been submitted against the private respondent ("the accused"). Cognizance was taken and it is the basis of the case.
4. In the case, initially on 29.10.2021, charge under Section 377 IPC and Section 5(f)/6 of the POCSO Act was framed. Two witnesses, PW1, Victim No.4 and PW2, Victim No.1-D were examined. Thereafter, an application was filed by the prosecutor on 06.06.2022 stating therein that there are many victims in the case, but in the charge, the names of the victims have not been distinctly referred to. Therefore, charge may be 3 amended. This application was allowed by the impugned order dated 20.08.2022 and on 20.08.2022, distinct charges with regard to each victim were framed. Those charges are under Section 377 IPC and Sections 6 and 8 of the POCSO Act.
5. When the charges were framed, on behalf of the accused, an application was filed stating therein that since charges have been reframed, accused may be permitted to further cross-examine PW1 and PW2. This application was also allowed by the impugned order dated 20.08.2022 and PW1 and PW2 have been summoned for further cross-examination.
6. Learned counsel for the revisionist would submit that the accused was Manager of the residential school. Under such circumstances, the provisions of Section 9 of the POCSO Act are attracted instead of Section 8 of the POCSO Act. But, it is argued that the court below did commit an error in framing charge under Sections 8 of the POCSO Act.
7. It is also submitted on behalf of the revisionist that charges, in fact, have not been changed, instead, with regard to each victim, they have been 4 separated. PW1, who is Victim No.4 and PW2, Victim No.1-D, have stated about the act done against them. They have been cross examined. Therefore, there is no occasion for the accused to seek further cross examination of PW1 and PW2.
8. On the other hand, learned counsel appearing for the accused would submit that in case further cross-examination of PW1 and PW2 is denied, it would seriously prejudice the defence of the accused. She would submit that earlier charges were collectively framed in terms of the victims. Therefore, the strategy of the defence was distinct. But now, it is argued that charges are differently framed with regard to each of the victims, therefore, further cross-examination is necessary. It is also argued that earlier, the counsel was different. Now, it has been realised that certain more questions ought to have been asked in cross- examination of PW1 and PW2. Therefore, further cross- examination of PW1 and PW2 is necessary. In support of her contention, learned counsel for the accused would also refer to the provisions of Section 217 of the Code of Criminal Procedure, 1973 ("the Code") and has referred to the judgment in the case of Sonia Vs. State of 5 Haryana and others, Criminal Revision No.3303 of 2013 (O & M).
9. In fact, in the case of Sonia (supra), no principle of law, as such, has been laid down. In that case, the Hon'ble High Court of Punjab and Haryana has observed that while declining re-examination of a witness, the Court did not record any finding that the purpose of re-examination of the witnesses is for the purpose of vexation or delay or for defeating the ends of justice. Such order was not upheld.
10. Learned counsel for the accused would also submit that there is no documentary evidence to prove that the accused was Manager of the residential school. Therefore, there is no occasion to frame charge under Section 9 of the POCSO Act instead of Section 8 of the POCSO Act.
11. Undoubtedly, if charges are modified and distinct charges are leveled, an accused has a right to further cross-examine the witnesses, who have already been examined. In fact, right to fair trial includes right to fair opportunity of defence. Reference has been made to Section 217 of the Code. It reads as hereunder:
"217. Recall of witnesses when charge altered.-- Whenever a charge is altered or added to by the Court 6 after the commencement of the trial, the prosecutor and the accused shall be allowed--
(a) to recall or re-summon, and examine with reference to such alteratio n or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, 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;
(b) also to call any further witness whom the Court may think to be material."
12. In each case, where charge is altered or added, it does not give an absolute right to the accused to seek further examination of the witnesses already examined. At the general rule, if a charge is altered or added, the prosecutor and the accused are allowed to recall or re-examine with reference to such alteration, any witness, who has been examined. But this general rule is subject to a rider that if the court, for the reasons to be recorded, is of the view 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, such recall or re-examination may be denied by the Court.
13. In its objections, the accused also stated that the revision is not maintainable but during the course of argument, on behalf of the revisionist, it is submitted that revision is maintainable because, if not entertained, it would be a serious miscarriage of justice. Learned counsel for the revisionist has placed reliance 7 on the principles of law, as laid down in the case of Honnaiah T.H. Vs. State of Karnataka and others, 2022 SCC OnLine SC 1001. In Para 13 of the judgment, the Hon'ble Supreme Court observed as hereunder:-
"13. There would be a serious miscarriage of justice in the course of the criminal trial if the statement were not to be marked as an exhibit since that forms the basis of the registration of the FIR. The order of the trial judge cannot in these circumstances be treated as merely procedural or of an interlocutory in nature since it has the potential to affect the substantive course of the prosecution. The revisional jurisdiction under Section 397 CrPC can be exercised where the interest of public justice requires interference for correction of manifest illegality or the prevention of gross miscarriage of justice. A court can exercise its revisional jurisdiction against a final order of acquittal or conviction, or an intermediate order not being interlocutory in nature. In the decision in Amar Nath v. State of Haryana, this Court explained the meaning of the term "interlocutory order" in Section 397(2) CrPC. This Court held that the expression "interlocutory order" denotes orders of a purely interim or temporary nature which do not decide or touch upon the important rights or liabilities of parties. Hence, any order which substantially affects the right of the parties cannot be said to be an "interlocutory order". Speaking for a two- Judge Bench, Justice Murtaza Fazal Ali observed:
"6. [...] It seems to us that the term "interlocutory order" in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court."8
14. In fact, the Hon'ble Supreme Court also observed in this case that, "The revisional jurisdiction of a High Court under Section 397 read with Section 401 of the CrPC, is a discretionary jurisdiction that can be exercised by the revisional court suo motu so as to examine the correctness, legality or propriety of an order recorded or passed by the trial court or the inferior court. As the power of revision can be exercised by the High Court even suo moto, there can be no bar on a third party invoking the revisional jurisdiction and inviting the attention of the High Court that an occasion to exercise the power has arisen."
15. In fact, during the course of argument, on behalf of the accused, no objection has been raised with regard to the maintainability of the revision.
16. The accused is facing trial under the POCSO Act as well. While dealing with the present issue, the provisions of the POCSO Act are also to be kept in mind. The procedure and powers of special courts and recording of evidence has been provided under Chapter VIII of the POCSO Act. It makes various provisions with regard to questioning the witnesses. Section 35(5) of the POCSO Act provides that the special courts shall ensure 9 that the child is not called repeatedly to testify in the court.
17. On 29.10.2021, the accused was charged under Section 377 IPC and Section 6 of the POCSO Act. According to the charges, being Manager of a residential school, the accused called minor students in his hostel room and committed the offence. Under both these heads, the victims have been used in plural. In both these charges, the accused has been told that the act was done by him when he was Manager of a residential school.
18. By the modification of the charge, what is done is that charge under Section 377 IPC and Section 6 of the POCSO Act has been levelled with regard to each of the victims. In fact, it is not alteration of charge. What was collectively told to the accused has been separately told to him.
19. PW1 is the Victim no.4 and PW2 is the Victim No.1-D. With regard to PW1, there are charges under Section 377 IPC and Section 6 of the POCSO Act.
20. PW2, Victim No.1-D has already been examined and cross-examined. He has stated about the acts done to him by the accused. He has been cross- examined on those aspects. Therefore, merely by separating the charge, as per the victims, does not 10 absolutely gives a right of further cross-examination to the accused. In fact, if such permission is granted, it would definitely defeat the ends of justice.
21. In so far as the further cross-examination of the PW1 is concerned, according to the charges, which were framed subsequently, charge no.7 relates to him. It is with regard to sexual assault. Fact remains that no charge of sexual assault was earlier framed on the accused. It was framed for the first time on 20.08.2022.
22. Learned counsel for the revisionist would argue that offence under Section 8 of the POCSO Act is a lesser offence than Section 6 of the POCSO Act. Therefore, it is argued that merely because charge under Section 8 of the POCSO Act has been added, the accused does not get a right to further cross-examine PW1. This argument would have been accepted had the charge under Sections 6 and 8 of the POCSO Act been framed qua one and the same victim.
23. According to the prosecution, PW1 is a victim of aggravated sexual assault. As stated, charge under Section 8 of the POCSO Act was not framed, earlier. Although, it is also a fact that PW1 was examined and cross-examined. It is also to be noted that PW1 has also stated that in his presence an offence of penetrative sexual assault was done by the accused on 11 another child. Has he been examined with regard to an offence under Section 6 of the POCSO Act alone or had PW1 been also examined as a victim of an offence of aggravated sexual assault? But, as stated, this charge was not framed. Therefore, this Court is of the view that definitely the accused should be afforded an opportunity to further cross-examine PW1.
24. Insofar as framing of charge under Section 9 of the POCSO Act is concerned, fact remains that it is the case of the prosecution that the accused was the manager of a residential school. Section 9of the POCSO Act defines aggravated sexual assault, which is punishable under Section 10 of the POCSO Act. According to Section 9(f) of the POCSO Act, if management or a staff of an educational institution, etc. commits sexual assault on a child in that institution, it also amounts to aggravated offence. This is what the prosecution case is. Therefore, definitely, the charges under Section 9 read with 10 of the POCSO Act ought to have been framed on the accused instead of Section 8 of the POCSO Act. Accordingly, the revision deserves to be partly allowed.
25. The revision is partly allowed.
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26. The accused shall get an opportunity to further cross-examine PW1 alone. He shall not get opportunity to further cross-examine PW2.
27. The accused shall be charged under Section 9 read with 10 of the POCSO Act in relation to victim no.4 and victim no.5. The court below is directed to correct the charge (head 7 & 8) framed on 20.08.2022, accordingly.
28. The impugned order dated 20.08.2022 is modified to the extent, as indicated above.
(Ravindra Maithani, J.) 13.10.2022 Ravi Bisht