Daniel Anandrao Gawai vs State Of Gujarat on 10 August, 2018

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Gujarat High Court

Daniel Anandrao Gawai vs State Of Gujarat on 10 August, 2018

Bench: Sonia Gokani

       R/CR.MA/14260/2018                              ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/CRIMINAL MISC.APPLICATION NO. 14260 of 2018

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                            DANIEL ANANDRAO GAWAI
                                     Versus
                              STATE OF GUJARAT
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Appearance:
PARTY IN PERSON(5000) for the PETITIONER(s) No. 1
PUBLIC PROSECUTOR(2) for the RESPONDENT(s) No. 1
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 CORAM: HONOURABLE MS JUSTICE SONIA GOKANI

                                Date : 10/08/2018

                                 ORAL ORDER

1. Applicant is seeking transfer of Special POCSO Case No.70 of 2014 from District: Jamnagar so also seeking the trial under section 474 of the Code of Criminal Procedure, which is a trial before the High Court. It appears that Special POCSO Case No.70 of 2014 is going on before the Court of learned Special Judge & Additional Sessions Judge, Jamnagar, which shall be referred to hereinafter as "the said case".

2. The present applicant is charged of section 354A of the Indian Penal Code and sections 8,9(f) and 10 of the Protection of Children from Sexual Page 1 of 21 R/CR.MA/14260/2018 ORDER Offences Act, 2012 ("the POCSO Act" for short).

3. The prosecution has already examined four witnesses in support of the charge. Petitioner, according to him, is a social worker and RTI activist, who has chosen to defendant himself in person and has also refused the legal aid made available by the Court. Since the applicant has prayed for urgent stay of the proceedings of the said case before the learned Special Judge & Additional Sessions Judge, Jamnagar, the following order came to be passed on 31.07.2018: '"1. This is an application for urgent stay of proceedings of Special (POCSO) Case No.70 of 2018 pending before the Court of learned Special Judge & Additional Sessions Judge, Jamnagar.

2. It is the say of the petitioner that he is an accused in POCSO Case No.70 of 2014 and has given numerous applications. Some of them are also for perjury. Many of the orders of rejection have also been challenged before this Court. The details of which have been given. He further also submits that he has not engaged any lawyer, but has defended his case himself. It is his grievance that the atmosphere created in the Court is quite hostile. He is not permitted to conduct the matter freely and in a fearless atmosphere. It is a mob of advocates, which is attempting to terrorize the Court and the situation, which is created makes it impossible for him to conduct the matter. For him and his family, the situation has come to a pass where he is Page 2 of 21 R/CR.MA/14260/2018 ORDER unable to proceed with the matter, which otherwise is his indefeasible right. Today since the applicant has approached this Court, the matter is taken up in the evening. The Court may call for the CCTV footage of the camera inside the Court.

3. Learned Additional Public Prosecutor is requiring to take instructions in this regard. Let the details be called for.

4. Learned Principal District Judge shall gather details from the learned Special Judge, POCSO as the chief concerned of this Court is to ensure that any trial which goes on is conducted freely and fairly. It is further his submission that an attempt is made to thwart the course of justice by creating mobocracy. The predominant concerned of the Court is that the trial should be conducted fairly and not in an atmosphere which is quite intimidating. The respective parties would have their right to proceed before this Court of law, but the same should be in absolutely free and fair atmosphere.

5. Till the report is received by this Court by 03.08.2018, the applicant shall be at liberty to make request before the Court concerned for adjournment. Registry shall forthwith send the copy of this order to the Court concerned by fax message.

Copy of this order shall also be given to the applicant today itself."

4. This Court had called for report from the learned Additional Sessions Judge, Jamnagar. The principle concern of this Court is for ensuring free and fair trial, which is the right of every citizen given by the Constitution. The report was called from the learned Additional Sessions Judge, Jamnagar, which has arrived on 03.08.2018 Page 3 of 21 R/CR.MA/14260/2018 ORDER stating therein that 70 advocates represent the victim and urged for speedy justice for the offence by placing their Vakalatnama. Moreover, the accused being a social worker and RTI activist, he has taken advantage of lacuna of prosecution and its witnesses and has made false allegations against Government Pleader and Public Prosecutor and also against the Judges and advocates. He also has pressurized the judicial officers and has been threatening of self molestation and one such move also was made by him. His behaviour is also rash and rude and he is also disrespectful to the DGP. He continues to spoil the atmosphere and intentionally violates the disciplinary rules to create pressure for favouring judgment and order. It is also his say that for safety of the applicant and for maintaining the judicial decorum and dignity, the Court has been requesting the security and on every day basis, the same has been called. The victim is from rustic background and is hailing from a very poor economic strata. This being a case of 2014 Page 4 of 21 R/CR.MA/14260/2018 ORDER only four witnesses have been examined. The Court below has quoted the decision rendered by the Apex Court in the case of Alakh Alok Srivastava vs. Union of India and others passed in Special Write (C) No.76 of 2018 to urge that there shall be no unnecessary adjournments and complete trial should be in time bound manner, particularly, when there is examination in chief, cross examination and reexamination.

5. This Court has heard the party inperson, who has urged that he is arraigned as accused wrongly in the said case and he has tendered various applications, some of which are also for perjury and many orders of rejection also has been challenged before this Court. He has urged that he is not permitted to conduct the matter freely and fairly and forcefully a mob of advocates terrorized him in the Court. It is impossible to conduct the matter at Jamnagar. He has further also urged that the situation has come to a stand where he is unable to proceed with the matter.

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R/CR.MA/14260/2018 ORDER

6. It is further his say that false complaints are being created against him. Even while he was here on 03.08.2018 the First Information Report which is outrightly false and concocted is lodged.

7. Mr. Mitesh Amin learned Public Prosecutor appearing with Ms. Maithili Mehta, learned Additional Public Prosecutor for the respondent State has urged on instructions from their counterparts that the State has provided all kinds of protection to the present applicant and has also ensured that inside the Court room, the atmosphere is conducive. He has further ensured that no difficulty will be found by any party in conducting the case freely and fairly and he has ensured that the matter shall be proceeded in fair manner. He, however, has urged that the applicant has been delaying the matter on one or the other counts. He has also been in a habit of spoiling the atmosphere of the Court.

8. Having thus heard both the sides, at the outset, Page 6 of 21 R/CR.MA/14260/2018 ORDER the provisions of section 407 of the Code of Criminal Procedure will be necessary to be reproduced as under: "407. Power of High Court to transfer cases and appeals : (1)Whenever it is made to appear to the High Court

(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or (b that some question of law of unusual difficulty is likely to arise, or

(c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice.

(i) that any offence be inquired into or tried by any court not qualified under Sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence;

(ii) that any particular case or appeal, or class of cases or appeals, be transferred from a criminal court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;

(iii) that any particular case be committed for trial to a Court of Session; or

(iv) that any particular case or appeal be transferred to and tried before itself. (2) The High Court may act either on the report of the Lower Court, or on the application of a party interested, or on its own initiative : Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.

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R/CR.MA/14260/2018 ORDER (3) Every application for an order under sub section (1) shall be made by motion, which shall, except when the applicant is the AdvocateGeneral of the State, be supported by affidavit or affirmation.

(4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under subsection (7). (5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the application unless at least twentyfour hours have elapsed between the giving of such notice and the hearing of the application. (6) Where the application is for the transfer of a case or appeal from any Subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the Subordinate Court shall be stayed, on such terms as the High Court may think fit, to impose : Provided that such stay shall not affect the Subordinate Court's power of remand under Section 309.

(7) Where an application for an order under subsection (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case.

(8) When the High Court orders under sub section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred. (9) Nothing in this section shall be deemed Page 8 of 21 R/CR.MA/14260/2018 ORDER to affect any order of Government under Section 197. Corresponding old law.S.526 of the Code Of Criminal Procedure, 1898"

9. It is quite clear from the provision itself that when it is made to appear to the High Court that fair and impartial inquiry or trial cannot be held in any criminal Court subordinate to it, the High Court may order that any offence be inquired into under sections 177 to 185 by any other Court which in other respects is competent to inquire into or try such offence.

Any particular case or appeal can be transferred from a criminal Court subordinate to its authority or to any other such Criminal Court of equal or superior jurisdiction.

10. It is either to act on the report of lower Court or on an application of a party interested, where the application of transfer of case from any subordinate Court to the High Court, if it is satisfied and it it is necessary to so do in the interest of justice, order that pending disposal of the application, proceedings also be stayed.

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R/CR.MA/14260/2018 ORDER

11. This is not a case where for general convenience of the parties or witnesses or since it is expedient for ends of justice that such an order is required to made. Only ground put forward emphatically by the present petitioner is that 70 advocates appear for a victim, who is a very young girl in a case of molestation under section 354 of the Indian Penal Code and who are not permitting the free and fair trial. It is alleged that they act as a mob and disturb specially the Court's atmosphere. According to the trial Court, the the victim is hailing from a rustic background.

This Court has also inquired from the officer, who was coming from the 'C' Division police station, who has categorically stated Jamnagar that necessary protection is being made available every time when the matter is proceeded before the Court. It would not be out of place for the Court to refer to the decision rendered by the Apex Court in the case of Sakshi vs. Union of India and others, (2004) 5 SCC 518.

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R/CR.MA/14260/2018 ORDER

12. This Court notices that the trial is of molestation of a young girl, who was aged 6 years at the time of the incident. The Apex Court in the case of Sakshi (supra) has given detailed guidelines for recording the statement of the victim and for precaution and protection to be made at the time of recording of evidence in the absence of the accused. The Court has also directed that the offence, if is committed under sections 354 and 376 of the Indian Penal Code, deposition of victim also, at times can be very embarassing and section 327 of the Code of Criminal Procedure is to be made applicable to offence of such nature, where there will be a need for judicial activism. Relevant paragraphs of the case of Sakshi (supra) are reproduced hereunder:

29. Ms. Meenakshi Arora has referred to a decision of the Canadian Supreme Court in Her Majesty The Queen, Appellant v. D.O.L., Respondent and the Attorney General of Canada. Etc., [1995] 4 SCR 419. wherein the constitutional validity of Section 715.1 of the Criminal Code was examined. This section provides that in any proceeding relating to certain sexual offences in which the complainant was under age of eighteen years at the time the offence is alleged to have been committed, a videotape made within a Page 11 of 21 R/CR.MA/14260/2018 ORDER reasonable time after the alleged offence in which the complainant describes the act complained of, is admissible in evidence, if the complainant while testifying adopts the contents of the videotape. The Court of Appeal had declared Section 715.1 unconstitutional on the ground that the same contravened Sections 7 and 1 l(d) of the Canadian Charter of Rights and Freedoms and could not be sustained under Section 1. The Supreme Court took note of some glaring features in such type of cases viz. the innate power imbalance which exists between abuser and the abused child; a failure to recognise that the occurrence of child sexual abuse is one intertwined with the sexual abuse of all women, regardless of age; and that the Court cannot disregard the propensity of victims of sexual abuse to fail to report the abuse in order to conceal their plight from institutions without the criminal justice system which hold stereotypical and biased views about the victimisation of women. The Court accordingly held that the procedures set out in Section 715.1 are designed to diminish the stress and trauma suffered by child complainants as a byproduct of their role in the criminal justice system. The "system induced trauma" often ultimately serves to revictimise the young complainant. The Section was intended to preserve the evidence of the Child and to remove the need for them to repeat their story many times. It is often repetition of the story that results in the infliction of trauma and stress upon a child who is made to believe that she is not being believed and that her experiences are not validated. The benefits of such a provision would have in limiting the strain imposed on child witness who are required to provide detailed testimony about confusing, embarrassing and frightful incidents of abuse in an intimidating, confrontational and often hostile court room atmosphere. Another advantage afforded by the Section is the opportunity for the child to answer delicate question about the abuse in a more controlled, Page 12 of 21 R/CR.MA/14260/2018 ORDER less stressful and less hostile environment, a factor which according to social science research, may drastically increase the likelihood of eliciting the truth about the events at hand. The videotape testimony enables the Court to hear a more accurate account of what the child was saying about the incident at the time it first came to light and the videotape of an early interview if used in evidence can supplement the evidence of a child who is inarticulate or forgetful at the trial. The Section also acts to remove the pressure placed on a child victim of sexual assault when the attainment of "truth" depends entirely on her ability to control her fear, her shame and the horror of being face to face with the accused when she must describe her abuse in a compelling and coherent manner. The Court also observed that the rules of evidence have not been constitutionalised into unaltered principles of fundamental justice. Neither should they be interpreted in a restrictive manner which may essentially defeat their purpose of seeking truth and justice. Rules of evidence, as much as the law itself, are not cast in stone and will evolve with time. There Court accordingly reversed the judgment of Court of Appeal and upheld the constitutionality of section 715.1.

30. We will briefly refer to the statutory provisions governing the situation. Section 273 Cr.P.C. lays down that except as otherwise expressly provided, all evidence taken in the course of the trial or other proceedings shall be taken in the presence of the accused, or when his personal attendance is dispensed with, in the presence of his pleader. Sub section (1) of Section 327 Cr.P.C. lays down that any Criminal Court enquiring into or trying any offence shall be deemed to be open Court to which the public generally may have access, so far as the same can conveniently contain them. Subsection (2) of the same Sections says that notwithstanding anything contained in subsection (1) the inquiry into Page 13 of 21 R/CR.MA/14260/2018 ORDER the trial of rape or an offence under Section 376, Section 376A, Section 376 B, Section 376C or Section 376D of the Indian Penal Code shall be conducted in camera. Under the proviso to this subsection the Presiding Judge may, if he thinks fit, or on an application made by either of the parties, allow any particular person to have access to, or be or remain in, the room or building used by the court. It is rather surprising that the legislature while incorporating subsection (2) to Section 327 by amending Act 43 of 1983 failed to take note of offences under Section 354 and 377 IPC and omitted to mention the aforesaid provisions. Deposition of the victims of offences under Section 354 and 377 IPC can at time be very embarrassing to them.

31. The whole inquiry before a Court being to elicit the truth, it is absolutely necessary that the victim or the witnesses are able to depose about the entire incident in a free atmosphere without any embarrassment. Section 273 Cr.P.C. merely requires the evidence to be taken in the presence of the accused. The Section, however, does not say that the evidence should be recorded in such a manner that the accused should have full view of the victim or the witnesses. Recording of evidence by way of video conferencing visavis Section 273 Cr.P.C. has been held to be permissible in a recent decision of this Court in State of Maharashtra v. Dr. Praful B Desai, [2003] 4 SCC 601. There is major difference between substantive provisions defining crimes and providing punishment for the same and procedural enactment laying down the procedure of trial of such offences. Rules of procedure are handmaiden of justice and are meant to advance and not to obstruct the cause of justice. It is, therefore, permissible for the Court to expand or enlarge the meanings of such provisions in order to elicit the truth and do justice with the parties.

32. The mere sight of the accused may induce an element of extreme fear in the mind of the Page 14 of 21 R/CR.MA/14260/2018 ORDER victim or the witnesses or can put them in a state of shock. In such a situation he or she may not be able to give full details of the incident which may result in miscarriage of justice. Therefore, a screen or some such arrangement can be made where the victim or witnesses do not have to undergo the trauma of seeing the body or the face of the accused.

Often the question put in crossexamination are purposely designed to embarrass or confuse the victims of rape and child abuse. The object is that out of the feeling of shame or embarrassment, the victim may not speak out or give details of certain acts committed by the accused. It will, therefore, be better if questions to be put by the accused in cross examination are given in writing to the Presiding Officer of the Court, who may put the same to the victim or witnesses in a language which is not embarrassing. There can hardly be any objection to the other suggestion given by the petitioner that whenever a child or victim of rape is required to give testimony, sufficient breaks should be given as and when required. The provisions of subsection (2) of Section 327 Cr.P.C. should also apply in inquiry or trial of offences under Section 354 and 377 IPC.

33. In State of Punjab v. Gurmit Singh, [1996] 2 SCC 384 this Court had highlighted the importance of provisions of Section 327(2) and (3) Cr.P.C. and a direction was issued not to ignore the mandate of the aforesaid provisions and to hold the trial of rape cases in camera. It was also pointed out that such trial in camera would enable the victim of crime to be a little comfortable and answer the questions with greater ease and thereby improve the quality of evidence of a prosecutrix because there she would not be so hesitant or bashful to depose frankly as she may be in an open court, under the gaze of the public. It was further directed that as far as possible trial of such cases may be conducted by lady Judges wherever available so that the prosecutrix can Page 15 of 21 R/CR.MA/14260/2018 ORDER make a statement with greater ease and assist the court to properly discharge their duties, without allowing the truth to be sacrificed at the altar of rigid technicalities.

34. The writ petition is accordingly disposed of with the following directions :

(1) The provisions of subsection (2) of section 327 Cr.P.C. shall in addition to the offences mentioned in the subsection would also apply in inquiry or trial offences under sections 354 and 377 IPC.

(2) In holding trial of child sex abuse or rape :

(a) a screen or some such arrangements may be made where the victim or witnesses (who may be equally vulnerable like the victim) do not see the body or face of the accused;

(ii) the questions put in crossexamination on behalf of the accused, in so far as they relate directly to the incident, should be given in writing to the President Officer of the Court who may put them to the victim or witnesses in a language which is clear and is not embarrassing;

(iii) the victim of child abuse or rape, while giving testimony in court, should be allowed sufficient breaks as and when required.

These directions are in addition to those given in State of Punjab v. Gurmit Singh.

13. While directing the concerned Court to follow this and other judgments of the Supreme Court on this line it is also apt to direct that the Presiding Officer shall ensure that the trial is conducted in a free and fair atmosphere to install confidence in litigating party. While Page 16 of 21 R/CR.MA/14260/2018 ORDER so holding, it is also simultaneously being observed that no litigating party can be permitted to misuse the Court process and pollute the stream of justice.

14. So far as the question raised with regard to the litigation of perjury under section 344 of the Indian Penal Code is concerned, the stage has not yet come since the trial is not over.

Rest of the issues with regard to pendency of different petitions before this Court or for that matter, the appointment of Public Prosecutor, in the opinion of this Court, can be argued at the final stage. So far as pendency of the petition is concerned, nothing has been shown by the applicant to this Court that any order or direction of this Court in any of the pending petition is in his favour.

15. Resultantly, this Court does not find any reason to entertain this petition for transfer of applicant's matter. Application to that extent is not entered nor is found sustainable .

16. However, so far as applicant's request for free Page 17 of 21 R/CR.MA/14260/2018 ORDER and fair trial is concerned, Article 14 of the National Covenant on Civil and Political Rights reaffirming objects of Universal Declaration of Human Rights and provides that " Everyone shall be entitled to fair and public hearing by a competent, independent and impartial Tribunal established by law. Article 14(2) speaks of the presumption of Innocence and Article 14(3) provides a list of minimum fair trial rights whereas Article 14(5) provides for the right of a convicted person to have a higher Court, review of conviction or sentence and double jeopardy is prohibited by Article 14(7). Thus principles of rights and principles of fair trial are also interwoven in independent legal system where the State has a duty to ensure a fair trial to all those who are accused of any offence.

17. In the case of Zaira Habibulla Shaikh vs. State of Gujarat and others,(2006)3 SCC 374, the Apex Court has held and observed thus: "Each one has inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as it is to the victim and to society. Fair Page 18 of 21 R/CR.MA/14260/2018 ORDER trail obviously would mean a trial before an impartial Judge a fair prosecutor and an atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused witnesses or the accused which is being tried, is eliminated. In short, right o fair trial is a fundamental safeguard envisaged by the Constitution to ensure that no person either arbitrarily or unlawfully is deprived of his right to liberty, freedom and security. The word "trial" is not defined either by the Code of Civil Procedure or the Code of Criminal Procedure."

18. The Black's Law Dictionary gives he word "trial" meaning " a formal judicial examination of evidence and determination of legal claims in an adversary proceedings"

19. The Apex Court in the case of Mrs.Menaka Sanjay Gandhi and another vs. Miss Rani Jethmalani, (1979) 4 SCC 167, has held and observed as under: "4.0 In the case of Mrs. Maneka Sanjay Gandhi and another versus Miss Rani Jethmalani (1979) 4 SCC 167, the Apex Court has held that normally the complainant has right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried. However, assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the Court to consider when motion four transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or the like mini grievances. Something more compelling, more, substantial from the point Page 19 of 21 R/CR.MA/14260/2018 ORDER of view of public justice and its attendant environment is necessitous, The process of justice should not harass the parties and extraordinary situation difficult to imagine having with regard to ethics of the profession. The whole Bar when refuses to defend the accused, it may well be put forward as a ground which merits the Courts attention. Popular frenzy or official wrath shall not deter a member of the Bar from offering his services to those who wear unpopular names or unpalatable causes and the Indian advocates may not fail the standards."

20. This Court thus on affirming the right of fair trial as already detailed hereinabove deems it fit to give directions by striking balance for ensuring the right of victim and that of the petitioner as under:

(a) let there be an atmosphere for free and fair trial;

(b) requisite number of security personnels shall be deputed at the time of trial;

(c) the directions issued by the Apex Court in the case of Sakshi (supra) shall be followed, which will include in camera trial;

(d) to represent the victim prosecutrix not more that one or two advocates shall be permitted and the petitioner is directed to proceed with the trial without causing any further hurdles.

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R/CR.MA/14260/2018 ORDER He shall also maintain the decorum of the Court and of the Court proceedings;

(e) Necessary courtesy, which is expected to be shown to the Presiding Officer and the Court official should be shown;

(f) The Presiding Officer shall also ensure that, in no manner, the applicant is physically or otherwise harmed during the process. Any delay on the part of the applicant will entitle the Presiding Officer to close his right.

21. Application stands partly allowed. Disposed of accordingly.

(MS. SONIA GOKANI, J. ) SUDHIR Page 21 of 21

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