Be that as it may. The second point of
reference is, whether, the accused is entitled to be
released on bail if the evidence of the child has not been
recorded within a period of thirty days of taking cognizance
of the offence or if the Special Court does not complete the
trial within a period of one year from the date of taking
cognizance. Such an interpretation would be an additional
clause under the said provision and giving an additional
right to the accused. {Para 41}
42. It is observed that the object and purpose of
Section 35 of the POCSO Act is for the benefit of the child
victim and is not to be considered as an additional clause
for the purpose of granting bail to the alleged perpetrator
or the accused.
43. As discussed above, there may be various
reasons and circumstances beyond the control of the
Special Court under which the conclusion of the
proceedings within a period of one year may not happen.
As already noted, the reasons for the same have been
discussed above. Under such circumstances, the accused
cannot enforce the right to be released on bail. No such
right is envisaged under the said provisions of the Act and
the same cannot be read into it by way of an interpretation
which may go against the interest of the child victim. If
the aforesaid interpretation is to be made then, there
would be every attempt made to delay the proceedings
before the Special Court beyond the period of one year and
seek release of accused on bail. Such a position cannot be
encouraged nor is it envisaged under the POCSO Act.
44. Hence, any order passed by following the
dictum in Vinay with regard to grant of bail to the accused
on the premise there has been a delay in recording
evidence or for that matter, non-conclusion of the
proceedings within a period of one year from the date of
taking cognizance by the Special Court, is not good law
and it cannot be a precedent for future cases. In the
circumstances, we hold that the order passed in Vinay
cannot be treated as a judicial precedent in future cases.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
PRESENT
MRS. JUSTICE B.V.NAGARATHNA AND MRS. JUSTICE M.G.UMA
CRIMINAL PETITION No.2951 OF 2020
HANUMANTHA MOGAVEERA Vs STATE OF KARNATAKA
DATED THIS THE 23rd DAY OF APRIL, 2021
As per the special order of Hon'ble the Chief Justice
dated 12.01.2021, this Bench has been constituted to
consider the Reference made by the learned single Judge
of this Court under the provisions of the Protection of
Children from Sexual Offences Act, 2012 (hereinafter
referred to as "POCSO Act", for the sake of brevity) and
Section 164 and other provisions of the Code of Criminal
Procedure, 1973 (“Cr.P.C.,” for short). Although the
petitions have been dismissed, nevertheless, learned single
Judge has made a Reference to a Division Bench in the
following terms:
"26. At this juncture, it is brought to the notice
of this Court that when already the co-ordinate
Bench in the case of Vinay Vs. State of
Karnataka, rep. by Special PP, (supra) and
other two co-ordinate Benches have taken a
different view and this Court is taking a
different view, then under such circumstances,
the matter has to be referred to the Larger
Bench to consider the aspect of laying down
the law. In that light, I am of the considered
opinion that the matter requires to be referred
to the Larger Bench to consider the following
issues:
i) Whether the evidence which has
been recorded under Section 164 of
Cr.P.C. can be considered to be an
evidence under Section 35 of the POCSO
Act?
ii) If the evidence of the child has not
been recorded within a period of thirty
days of taking cognizance of the offence,
and if the Special Court does not
complete the trial within a period of one
year from the date of taking cognizance,
whether accused is entitled to be
released on bail holding that it is a
default clause which gives a right to the
accused?
Registry is directed to place the matter
before Hon’ble the Chief Justice for obtaining
necessary orders to refer the same before the
Larger Bench to decide on the above
questions."
BRIEF FACTUAL BACKGROUND:
2. For the purpose of answering the questions
extracted above, it is necessary to give a brief factual
background to the reference in these cases. Criminal
Petition No.2951 of 2020 and Criminal Petition No.3000 of
2020 were filed by accused No.1 seeking grant of bail in
Crime Nos.14/2019 and 16/2019 of Women Police Station,
Udupi, for the offences punishable under Sections 376(1),
376(3), 377, 506 of IPC; Sections 5(f)(i)(o)(p), 6, 21(2) of
the Protection of Children from Sexual Offences Act, 2012
(‘the POCSO Act’ for short); and Sections 3(1)(w)(i)(ii),
3(2)(v), 3(2)(va) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989.
3. The case of the prosecution in brief is that
Crime No.14/2019 was registered by the Women Police
Station, Udupi, on the basis of the first information lodged
by the informant/Warden of the Child Care Institution viz.,
Spoorthi Adoption and Fit Institution. Further, Crime
No.16/2019 was registered by the same Police Station in
respect of the same incident on the basis of the first
information lodged by the victim against the accused for
the aforesaid offences.
4. In Criminal Petition No.3000/2020, the victim
filed the complaint and in Criminal Petition No.2951/2020,
the Protection Officer/Warden of District Children
Protection Unit, Manipal, lodged a complaint alleging that
the victim was residing at Spoorthi Adoption and Fit
Institution and children therein are given in adoption also.
It is further alleged that one Kum.Panchami has been
given in adoption, but because of some differences
between the adopted child and the family, adoption was
cancelled and the child started staying in Spoorthi
Institution. It is further alleged that the petitioner-accused
No.1 used to enter the institution during night hours and
have sexual intercourse with the victims who are staying in
the said Institution. It is further stated by the victim
herself that the petitioner-accused No.1 and accused No.2
also used to enter the hostel illegally and used to sexually
assault them. As stated earlier, on the basis of the
complaints filed by the Warden and the victim, cases in
Crime Nos.14/2019 and 16/2019 respectively have been
registered.
SUBMISSIONS:
5. It was the submission of petitioner/accused
No.1 that, in the instant cases, the charge-sheet has
already been filed and accused No.1 is in custody. That
cognizance of offences was taken by the trial Court on
13.05.2019. As per Section 35(1) of POCSO Act evidence
of the child had to be recorded within a period of thirty
days of taking cognizance of the offence by the trial Court.
If the same is not so recorded, the reasons for the delay
has also to be recorded by the said Court. Further, as per
Section 35(2) of the POCSO Act, the trial Court, having not
completed the trial within a period of one year from the
date of taking cognizance of the offences,
petitioner/accused No.1 was entitled to be released on
bail.
6. In that regard, reliance was placed on the
order of this Court in the case of Vinay vs. State of
Karnataka, represented by Special P.P. [Criminal
Petition No.1195/2017 disposed on 13/07/2017]
(Vinay). It was contended that since the mandatory
requirements of Section 35(1) and (2) of the POCSO Act
had not been complied with in the instant cases,
petitioner/accused No.1 was entitled to be enlarged on
bail.
7. In this regard, reliance was also placed on the
decision in Sushila Aggarwal and others vs. State
(NCT of Delhi) and another, [2020 SCC Online SC 98]
(Sushila Aggarwal). It was also submitted that liberty of
the petitioner/accused No.1 had to be protected and if he
was not going to be released on bail, his personal liberty
was under jeopardy and his fundamental right enshrined in
Article 21 of the Constitution was in violation. It was
contended that if the petitioner/accused No.1 was released
on bail on certain conditions being imposed, the same
would be complied with and he would abide by the same.
8. Per contra, learned High Court Government
Pleader (HCGP) submitted that the statement of the victim
under Section 161 of the Cr.P.C. had been recorded,
before the learned Magistrate, but the said statement
recorded by the learned Magistrate cannot be construed as
evidence in terms of Section 35(1) of the POCSO Act.
Merely because there was a delay in recording evidence or
in the adjudication of the case and evidently Section 35 of
the POCSO Act had not been complied with in the instant
cases, that would not straight away entitle the
petitioner/accused No.1 to be enlarged on bail.
9. Learned single Judge on considering Vinay
relied upon by the petitioner/accused No.1 has observed
that the expression "as far as possible" used in Section
35(2) of the POCSO Act has to be borne in mind and
hence, doubting the order of this Court in Vinay, the
Reference has been made in the aforesaid terms.
However, learned single Judge on merits held that no case
was made out to release petitioner/accused No.1 on bail
and hence, the petition was dismissed. Nevertheless, in
order to answer the Reference, a Special Bench has been
constituted by Hon'ble the Chief Justice.
POINTS OF REFERENCE:
The points of reference are as under:
1. Whether the evidence which has been
recorded under Section 164 of Cr.P.C. can
be considered to be an evidence under
Section 35 of the POCSO Act?
2. If the evidence of the child has not been
recorded within a period of thirty days of
taking cognizance of the offence, and if the
Special Court does not complete the trial
within a period of one year from the date of
taking cognizance, whether accused is
entitled to be released on bail holding that it
is a default clause which gives a right to the
accused?
LEGAL FRAMEWORK:
10. Before venturing to answer the points of
Reference, it would be useful to recapulate the relevant
clauses from the Convention on the Rights of the Child
adopted by the General Assembly of the United Nations in
November, 1989:
"Convention on the Rights of the Child
Adopted and opened for signature,
ratification and accession by General
Assembly Resolution 44/25 of 20
November 1989,
entry into force 2 September 1990, in
accordance with Article 49
Preamble
The State parties to the present convention,
x x x
Recognizing that the United Nations has, in the
Universal Declaration of Human Rights and in
the International Covenants on Human Rights,
proclaimed and agreed that everyone is
entitled to all the rights and freedoms set forth
therein, without distinction of any kind, such as
race, colour, sex, language, religion, political
or other opinion, national or social origin,
property, birth or other status,
x x x
Recognizing that the child, for the full and
harmonious development of his or her
personality, should grow up in a family
environment, in an atmosphere of happiness,
love and understanding,
x x x
Bearing in mind that the need to extend
particular care to the child has been stated in
the Geneva Declaration of the Rights of the
Child of 1924 and in the Declaration of the
Rights of the Child adopted by the General
Assembly on 20 November 1959 and
recognized in the Universal Declaration of
Human Rights, in the International Covenant
on Civil and Political Rights (in particular in
articles 23 and 24), in the International
Covenant on Economic, Social and Cultural
Rights (in particular in article 10) and in the
statutes and relevant instruments of
specialized agencies and international
organizations concerned with the welfare of
children,
Bearing in mind that, as indicated in the
Declaration of the Rights of the Child, "the
child, by reason of his physical and mental
immaturity, needs special safeguards and care,
including appropriate legal protection, before
as well as after birth",
x x x
Have agreed as follows:
PART I
Article 1
For the purposes of the present Convention, a
child means every human being below the age
of eighteen years unless under the law
applicable to the child, majority is attained
earlier.
x x x
Article 3
1. In all actions concerning children, whether
undertaken by public or private social welfare
institutions, courts of law, administrative
authorities or legislative bodies, the best
interests of the child shall be a primary
consideration.
x x x
Article 16
1. No child shall be subjected to arbitrary or
unlawful interference with his or her privacy,
family, home or correspondence, nor to
unlawful attacks on his or her honour and
reputation.
x x x
Article 19
1. States Parties shall take all appropriate
legislative, administrative, social and
educational measures to protect the child from
all forms of physical or mental violence, injury
or abuse, neglect or negligent treatment,
maltreatment or exploitation, including sexual
abuse, while in the care of parent(s), legal
guardian(s) or any other person who has the
care of the child.
2. Such protective measures should, as
appropriate, include effective procedures for
the establishment of social programmes to
provide necessary support for the child and for
those who have the care of the child, as well as
for other forms of prevention and for
identification, reporting, referral, investigation,
treatment and follow-up of instances of child
maltreatment described heretofore, and, as
appropriate, for judicial involvement.
x x x
Article 34
States Parties undertake to protect the child
from all forms of sexual exploitation and sexual
abuse. For these purposes, States Parties shall
in particular take all appropriate national,
bilateral and multilateral measures to prevent:
(a) The inducement or coercion of a child to
engage in any unlawful sexual activity;
(b) The exploitative use of children in
prostitution or other unlawful sexual practices;
(c) The exploitative use of children in
pornographic performances and materials.
x x x
Article 39
States Parties shall take all appropriate
measures to promote physical and
psychological recovery and social reintegration
of a child victim of: any form of neglect,
exploitation, or abuse; torture or any other
form of cruel, inhuman or degrading treatment
or punishment; or armed conflicts. Such
recovery and reintegration shall take place in
an environment which fosters the health, selfrespect
and dignity of the child."
-- ~ --
11. Article 15(3) of the Constitution states that
nothing in this Article shall prevent the State from making
any special provision for women and children.
Object of POCSO Act:
12. The Scheme of the POCSO Act is also to be
deliniated. In a nutshell, the object of the Act is to protect
children from the offences of sexual assault, sexual
harassment and pornography and provide for
establishment of Special Courts for trial of such offences
and for matters connected therewith or incidental thereto.
The Statement of Objects and Reasons of the 2012 Act is
set out hereunder:
“Statement of Objects and Reasons.—
Article 15 of the Constitution, inter alia,
confers upon the State powers to make special
provision for children. Further, Article 39, inter
alia, provides that the State shall in particular
direct its policy towards securing that the
tender age of children are not abused and their
childhood and youth are protected against
exploitation and they are given facilities to
develop in a healthy manner and in conditions
of freedom and dignity.
2. The United Nations Convention on the
Rights of Children, ratified by India on 11-12-
1992, requires the State parties to undertake
all appropriate national, bilateral and
multilateral measures to prevent (a) the
inducement or coercion of a child to engage in
any unlawful sexual activity; (b) the
exploitative use of children in prostitution or
other unlawful sexual practices; and (c) the
exploitative use of children in pornographic
performances and materials.
3. The data collected by the National
Crime Records Bureau shows that there has
been increase in cases of sexual offences
against children. This is corroborated by the
“Study on Child Abuse: India 2007” conducted
by the Ministry of Woman and Child
Development. Moreover, sexual offences
against children are not adequately addressed
by the extant laws. A large number of such
offences are neither specifically provided for
nor are they adequately penalised. The
interests of the child, both as a victim as well
as a witness, need to be protected. It is felt
that offences against children need to be
defined explicitly and countered through
commensurate penalties as an effective
deterrence.
4. It is, therefore, proposed to enact a
self-contained comprehensive legislation inter
alia 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 Courts for speedy trial
of such offences.
5. The Bill would contribute to
enforcement of the right of all children to
safety, security and protection from sexual
abuse and exploitation.
6. The notes on clauses explain in detail
the various provisions contained in the Bill.
7. The Bill seeks to achieve the above
objectives.”
Para 1 of the Statement of Objects and Reasons
makes it clear that the Act's reach is only towards the
protection of children, as ordinarily understood. The scope
of the Act is to protect their “childhood and youth” against
exploitation and to see that they are not abused in any
manner."
13. The Preamble of the POCSO Act reads thus:
“An Act to protect children from offences
of sexual assault, sexual harassment and
pornography and provide for establishment of
Special Courts for trial of such offences and for
matters connected therewith or incidental
thereto.
Whereas clause (3) of Article 15 of the
Constitution, inter alia, empowers the State to
make special provisions for children;
And whereas, the Government of India has
acceded on 11-12-1992 to the Convention on
the Rights of the Child, adopted by the General
Assembly of the United Nations, which has
prescribed a set of standards to be followed by
all State parties in securing the best interests
of the child;
And whereas it is necessary for the proper
development of the child that his or her right
to privacy and confidentiality be protected and
respected by every person by all means and
through all stages of a judicial process
involving the child;
And whereas it is imperative that the law
operates in a manner that the best interest
and well-being of the child are regarded as
being of paramount importance at every stage,
to ensure the healthy physical, emotional,
intellectual and social development of the
child;
And whereas the State parties to the
Convention on the Rights of the Child are
required to undertake all appropriate national,
bilateral and multilateral measures to
prevent—
(a) the inducement or coercion of a child
to engage in any unlawful sexual activity;
(b) the exploitative use of children in
prostitution or other unlawful sexual practices;
(c) the exploitative use of children in
pornographic performances and materials;
And whereas sexual exploitation and
sexual abuse of children are heinous crimes
and need to be effectively addressed.”
Relevant Supreme Court decisions:
14. The relevant Supreme Court judgments on the
Act are referred to as under:
a) In Eera through Dr. Manjula Krippendorf
vs. State NCT of Delhi and another [(2017) 15 SCC
133], the Hon’ble Supreme Court observed on the
statement and objects of POCSO Act as under:
"20. The purpose of referring to the
Statement of Objects and Reasons and the
Preamble of the POCSO Act is to appreciate
that the very purpose of bringing a legislation
of the present nature is to protect the children
from the sexual assault, harassment and
exploitation, and to secure the best interest of
the child. On an avid and diligent discernment
of the Preamble, it is manifest that it
recognises the necessity of the right to privacy
and confidentiality of a child to be protected
and respected by every person by all means
and through all stages of a judicial process
involving the child. Best interest and well-being
are regarded as being of paramount
importance at every stage to ensure the
healthy physical, emotional, intellectual and
social development of the child. There is also a
stipulation that sexual exploitation and sexual
abuse are heinous offences and need to be
effectively addressed. The Statement of
Objects and Reasons provides regard being
had to the constitutional mandate, to direct its
policy towards securing that the tender age of
children is not abused and their childhood is
protected against exploitation and they are
given facilities to develop in a healthy manner
and in conditions of freedom and dignity. There
is also a mention which is quite significant that
interest of the child, both as a victim as well as
a witness, needs to be protected. The stress is
on providing child-friendly procedure. Dignity
of the child has been laid immense emphasis in
the scheme of legislation. Protection and
interest occupy the seminal place in the text of
the POCSO Act."
b) In Alakh Alok Srivastava vs. Union of
India & others, [(2020) SCC Online SC 345], it was
observed by the Hon'ble Supreme Court as under:
"13. At the very outset, it has to be
stated with authority that the POCSO Act is a
gender neutral legislation. This Act has been
divided into various Chapters and Parts
therein. Chapter II of the Act titled “Sexual
Offences Against Children” is segregated into
five parts. Part A of the said Chapter contains
two Sections, namely Section 3 and Section 4.
Section 3 defines the offence of “Penetrative
Sexual Assault” whereas Section 4 lays down
the punishment for the said offence. Likewise,
Part B of the said Chapter titled “Aggravated
Penetrative Sexual Assault and Punishment
therefor” contains two sections, namely
Section 5 and Section 6. The various
sub-sections of Section 5 copiously deal with
various situations, circumstances and
categories of persons where the offence of
penetrative sexual assault would take the
character of the offence of aggravated
penetrative sexual assault. Section 5(k), in
particular, while laying emphasis on the mental
stability of a child stipulates that where an
offender commits penetrative sexual assault on
a child, by taking advantage of the child’s
mental or physical disability, it shall amount to
an offence of aggravated penetrative sexual
assault."
In Alakh Alok Srivastava, it was further elaborated as
under:
"19. Speaking about the child, a
three-Judge Bench in M.C. Mehta v. State of
T.N. and others, [(1996) 6 SCC 756],
opined that:-
“… “child is the father of man”. To enable
fathering of a valiant and vibrant man,
the child must be groomed well in the
formative years of his life. He must
receive education, acquire knowledge of
man and materials and blossom in such
an atmosphere that on reaching age, he
is found to be a man with a mission, a
man who matters so far as the society is
concerned.”
20. In Supreme Court Women
Lawyers Association (SCWLA) v. Union of
India and another, [(2016) 3 SCC 680],
this Court has observed:-
“In the case at hand, we are concerned
with the rape committed on a girl child.
As has been urged before us that such
crimes are rampant for unfathomable
reasons and it is the obligation of the law
and law-makers to cultivate respect for
the children and especially the girl
children who are treated with such
barbarity and savageness as indicated
earlier. The learned Senior Counsel
appearing for the petitioner has
emphasised on the obtaining horrendous
and repulsive situation.”
Alice Miller, a Swiss psychologist,
speaking about child abuse has said:-
“Child abuse damages a person for life
and that damage is in no way diminished
by the ignorance of the perpetrator. It is
only with the uncovering of the
complete truth as it affects all those
involved that a genuinely viable solution
can be found to the dangers of child
abuse.”
21. Keeping in view the protection of the
children and the statutory scheme conceived
under the POCSO Act, it is necessary to issue
certain directions so that the legislative intent
and the purpose are actually fructified at the
ground level and it becomes possible to bridge
the gap between the legislation remaining a
mere parchment or blueprint of social change
and its practice or implementation in true
essence and spirit is achieved.
x x x
23. It is submitted by Mr. Srivastava that
in both the States, the cases are pending at
the evidence stage beyond one year. We are
absolutely conscious that Section 35(2) of the
Act says “as far as possible”. Be that as it may,
regard being had to the spirit of the Act, we
think it appropriate to issue the following
directions:-
(i) The High Courts shall ensure that the
cases registered under the POCSO Act
are tried and disposed of by the Special
Courts and the presiding officers of the
said courts are sensitized in the matters
of child protection and psychological
response.
(ii) The Special Courts, as conceived, be
established, if not already done, and be
assigned the responsibility to deal with
the cases under the POCSO Act.
(iii) The instructions should be issued to the
Special Courts to fast track the cases
by not granting unnecessary
adjournments and following the
procedure laid down in the POCSO Act
and thus complete the trial in a
time-bound manner or within a specific
time frame under the Act.
(iv) The Chief Justices of the High Courts
are requested to constitute a
Committee of three Judges to regulate
and monitor the progress of the trials
under the POCSO Act. The High Courts
where three Judges are not available
the Chief Justices of the said courts
shall constitute one Judge Committee.
(v) The Director General of Police or the
officer of equivalent rank of the States
shall constitute a Special Task Force
which shall ensure that the
investigation is properly conducted and
witnesses are produced on the dates
fixed before the trial courts.
(vi) Adequate steps shall be taken by the
High Courts to provide child friendly
atmosphere in the Special Courts
keeping in view the provisions of the
POCSO Act so that the spirit of the Act
is observed."
c) In Nipun Saxena & Anr vs. Union of India
& others, [(2019) 2 SCC 703], it was observed as
under:
"29. A minor who is subjected to sexual
abuse needs to be protected even more than a
major victim because a major victim being an
adult may still be able to withstand the social
ostracization and mental harassment meted
out by society, but a minor victim will find it
difficult to do so. Most crimes against minor
victims are not even reported as very often,
the perpetrator of the crime is a member of
the family of the victim or a close friend.
Efforts are made to hush up the crime. It is
now recognised that a child needs extra
protection. India is a signatory to the United
Nations Convention on the Rights of Child,
1989 and Parliament thought it fit to enact
POCSO in the year 2012, which specifically
deals with sexual offences against all children.
The Act is gender neutral and whatever we say
in this Part will apply to all children."
d) In Mahender Chawla & others vs. Union of
India & others, [(2018) SCC Online SC 5679], it was
observed as under:
"11) The protection of a child witness, who
may also be a victim, becomes all the more
important. In Sakshi vs. Union of India,
[(2004) 5 SCC 518], the Court stressed that
there is a dire need to come up with a
legislation for the protection of witnesses. The
Court also had issued certain guidelines on the
procedure of taking of evidence from a child
witness. The Court also pointed out the need
for special protection to a victim of sexual
abuse at the time of recording her statement in
court. The petitioner in that case had given
certain suggestions for effectively dealing with
the special provisions for testimony in child
sexual abuse cases, which were as follows:
a) The judges shall allow the use of a
videotaped interview of the testimony
of the child in the presence of a childsupport
person.
b) A child could be permitted to testify
through closed circuit television or from
behind a screen to acquire an honest
and frank account of the acts
complained of without any fear.
c) Only the judge should be allowed to
cross-examine a minor on the basis of
the questions given by the defence in
writing after the examination of the
minor.
d) During the testimony of the child,
sufficient interval should be provided as
and when she requires it."
Scheme of POCSO Act:
15. Chapter II of the Act deals with sexual offences
against children, while Chapter III deals with using the
child for pornographic purposes and punishment therefor.
Chapter VI of the POCSO Act deals with procedure for
recording the statement of the child.
(a) Under Chapter VI, Section 24 deals with
recording of statement of a child at the residence of the
child or at a place where he usually resides or at the place
of his choice, as far as practicable, by a woman police
officer not below the rank of sub-inspector. There are
other conditions stipulated while recording the statement
of the child.
(b) Section 25 deals with recording of statement of
a child by the Magistrate under Section 164 of Cr.P.C. The
said statement must be recorded as spoken by the child.
The proviso to sub-section (1) of Section 25 of the said Act
states that, the provisions contained in the first proviso to
sub-section (1) of Section 164 of Cr.P.C. shall, so far it
permits the presence of the advocate of the accused shall
not apply under the POCSO Act. Sub-section (2) of
Section 25 states that the Magistrate shall provide to the
child and his parents or his representative, a copy of the
document specified under Section 207 of Cr.P.C., upon the
final report being filed by the police under Section 173 of
Cr.P.C. Section 207 of Cr.P.C. deals with supply to the
accused of copy of police report and other documents,
while Section 173 of Cr.P.C. deals with the report of the
police officer on completion of investigation. Sub-section
(1A) of Section 173 of Cr.P.C. states that the investigation
in relation to rape of a child may be completed within three
months from the date on which the information was
recorded by the officer in charge of the police station. The
said sub-section was inserted with effect from 31.12.2009.
However, POCSO Act has provided for special provisions
with regard to offences under the said Act.
(c) Additional provisions regarding statement to be
recorded are found in Section 26 of the POCSO Act, under
which provision is made for taking the assistance of a
translator or an interpreter, having such qualifications and
experience, as may be prescribed, while recording the
statement of the child by the Magistrate or the police
officer, as the case may be. Similarly, the assistance of a
special educator or any person familiar with the manner of
communication of the child or an expert in that field,
having such qualifications and experience, as may be
prescribed, could be taken when the Magistrate or the
police officer records the statement of a child having
mental or physical disability. Electronic recording of the
statement by audio-video means is also permissible when
it is recorded by the Magistrate or the police officer, as the
case may be.
16. Chapter VIII of the POCSO Act deals with
procedure and powers of special courts and recording of
evidence.
(a) Procedure and powers of the Special Courts are
delineated in Section 33 of the POCSO Act, which 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 facts. As per sub-section (2) of Section 33
of the POCSO Act, the Special Public Prosecutor, or as the
case may be, the counsel appearing for the accused shall,
while recording the examination-in-chief, crossexamination
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. 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. While the Special Court may, if it
considers necessary, permit frequent breaks for the child
during the trial, at the same time, it must ensure that the
child is not called repeatedly to testify in the court. There
cannot also be aggressive questioning or character
assassination of the child and ensure that dignity of the
child is maintained at all times during the trial. Also the
Special Court shall ensure that the identity of the child is
not disclosed at any time during the course of investigation
or trial, unless for reasons to be recorded in writing, the
Special Court permits such disclosure, if, in its opinion,
such disclosure is in the interest of the child. Identity of
the child does not mean the name of the child, but shall
also 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.
b) Subject to the provisions of the POCSO Act,
the Special Court shall try the offences under the POCSO
Act as if it were a Court of Session, and as far as may be,
in accordance with the procedure specified in Cr.P.C. for
trial before a Court of Session. Thus, the provisions of
POCSO Act would prevail over any other law if the latter is
inconsistent with the POCSO Act.
c) The procedure in case of commission of offence
by child and determination of age by Special Court is
prescribed under Section 34 of the POCSO Act, which is
not relevant for the purpose of answering the points of
reference in this case.
d) Section 35 of the POCSO Act consists of two
parts: firstly, it deals with the period for recording of
evidence of the child and disposal of case. Sub-section (1)
of Section 35 states that 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. Secondly,
Sub-section (2) prescribes the period of one year from the
date of taking cognizance of the offence for the purpose of
completion of the trial. Of course, the said period
prescribed is to be complied with, as far as possible, by the
Special Court.
e) Before analysing the object and purpose of
Section 35 of the POCSO Act, in respect of which this
Reference has been made in the instant case, for the
purpose of completion of analysis, it would be useful to
refer to Section 36 of the POCSO Act, which states that the
child should not see the accused at the time of testifying
and that as per Section 37, the trial ought to be conducted
in camera; Section 38 of the POCSO Act provides for
assistance of an interpreter or expert while recording the
evidence of child. Sub-section (1) of Section 38 states
that wherever necessary, the Court may take the
assistance of a translator or an interpreter having such
qualifications, experience and on payment of such fees as
may be prescribed, while recording the evidence of the
child. The assistance of a special educator or any person
familiar with the manner of communication of the child or
an expert in that field, having such qualifications,
experience, as may be prescribed, may be engaged to
record the evidence of the child by the Special Court if a
child has a mental or physical disability. The guidelines for
the child to take assistance of experts and the right of
child to take assistance of legal practitioner are provided
for under Sections 39 and 40 of the POCSO Act, which are
in Chapter IX.
f) Section 42A states that the provisions of the
POCSO Act shall be in addition to and not in derogation of
the provisions of any other law for the time being in force
and, in case of any inconsistency, the provisions of the
POCSO Act shall have an over-riding effect on the
provisions of any such law to the extent of the
inconsistency.
g) As per Section 45 of the POCSO Act, the
Central Government has the power to make Rules. The
power to remove difficulties is in Section 46 of the POCSO
Act. It empowers the Central Government, by order
published in the Official Gazette, to make such provisions
not inconsistent with the provisions of the POCSO Act, as
found necessary or expedient for removal of the difficulty,
but, only after the expiry of a period of two years from the
commencement of the POCSO Act, after laying the same
before each House of Parliament.
17. A reading of the provisions of the POCSO Act,
as highlighted above, would clearly indicate that the said
Act is a special legislation for the protection of children
from offences of sexual assault, harassment and
pornography, etc. The POCSO Act being a special piece of
legislation must over-ride the general legislation. In this
regard, it would be useful to observe that the POCSO Act is
a combination of both substantive law as well as
procedural or adjective law. Substantive criminal offences
have been created under various provisions of the POCSO
Act and the manner in which the adjudication of said
offences ought to take place, namely the procedure to be
followed is also provided for under the POCSO Act.
18. The Protection of Children from Sexual
Offences Rules, 2012 (hereinafter referred to as 'the
POCSO Rules') provide for various aspects, including, care
and protection of the victim child of an offence committed
under the provisions of the POCSO Act, emergency medical
care and for compensation.
FIRST POINT:
19. Re-visiting the points of Reference made in the
instant cases, interpretation of Section 35 of the POCSO
Act and the meaning of the expression 'evidence' of the
child which has to be recorded within a period of thirty
days from the date of taking cognizance of the offences by
the Special Court have to be given.
20. In this context, it would be useful to a priori,
refer to Cr.P.C. and particularly, Chapter XII thereof, which
deals with information to the police and their powers to
investigate.
(a) Under Section 161 of Cr.P.C., any police officer
making an investigation into an alleged offence may
examine orally any person supposed to be acquainted with
the facts and circumstances of the case. The police officer
may reduce into writing any statement made to him in the
course of an examination under the said Section and if he
does so, he shall make a separate and true record of the
statement of each such person whose statement he
records. Such a statement may also be recorded by audiovideo/
electronic means. Provided further that the
statement of a woman against whom an offence under
certain Sections of the Indian Penal Code is alleged to have
been committed or attempted shall be recorded, by a
woman police officer or any woman officer.
(b) Section 164 of Cr.P.C., deals with recording of
confessions and statements by any Metropolitan or Judicial
Magistrate made to him in the course of an investigation,
the same is relatable to Sections 25 and 26 of the POCSO
Act.
21. But, Section 35 of the POCSO Act does not
deal with recording of statement of a child, but recording
of evidence of the child and disposal of the case. The
said Section is relatable to Chapter XXIII of Cr.P.C., which
deals with evidence in inquiries and trials, including mode
of taking and recording of evidence. But, Section 35 of the
POCSO Act, being under a special enactment, would
prevail over the general provisions of Cr.P.C., particularly
when there is any inconsistency between the said Section
and Cr.P.C., as per the provisions of Section 42A of the
POCSO Act.
22. Recording of evidence of the child by the
Special Court is during the course of trial. Sub-section (1)
of Section 35 of the POCSO Act states that the evidence of
the child shall be recorded within a period of thirty days of
taking cognizance of the offence by the Special Court and
if there is any delay in doing so, the reasons for the delay
shall be recorded by the Special Court. The object and
purpose of prescribing the period of thirty days for
recording the evidence of the victim child are not far to
see. As per Sub-section (2) of Section 35 of the POCSO
Act, the Special Court has to complete the trial as far as
possible within a period of one year from the date of taking
cognizance of the offence. The prescription of thirty days
from the date of taking cognizance of the offence for
recording the evidence of the child is salutary. Further,
the victim of the offences, under the POCSO Act, being a
child below the age of eighteen years, ought to give his or
her evidence before the Special Court as early as possible
in order to make the said evidence sacrosanct and free
from exaggeration or an under-statement or a departure
from the true facts and circumstances of the case. There
may be cases where the child, on account of passage of
time, would not be in a position to recollect the relevant
facts of the case, or due to trauma and being affected
mentally or physically may not be in a position to testify
before the Special Court, if there is a delay in recording
such evidence. Hence, in order to receive pure and
sacrosanct evidence of the child victim, the time stipulated
is within a period of thirty days of taking cognizance of the
offence and any delay in doing so must be supported by
reasons.
23. The first point of reference is, whether the
statement which has been recorded under Section 164 of
Cr.P.C. could be considered to be an evidence under
Section 35 of the POCSO Act. In our considered view, the
same cannot be equated as one and the same. As already
noted, a statement under Section 164 of Cr.P.C. is during
the course of investigation or at any time afterwards
before the commencement of the trial. But, the evidence
recorded before the Special Court under Section 35 of the
POCSO Act is during the course of the trial. The two cannot
be equated and neither are they on same plane.
24. On a reading of sub-section (1) of Section 35
of the POCSO Act, it is observed that there is a mandate
for the Special Court to record the evidence of the child
within a period of thirty days of taking cognizance of the
offence by the Special Court. That is the ideal mandate to
be followed. But, if the recording of the evidence does not
take place within the stipulated period, it does not mean
that the evidence recorded thereafter would lose its
sanctity or is to be discarded. This is because, the
provision itself speaks that if there is a delay in recording
the evidence of the child, the Special Court has to give
reasons for the delay. This stipulation would imply that
recording evidence of the child beyond a period of thirty
days from the date of taking cognizance of the offence by
the Special Court is not of any lesser sanctity, but if for
any reason, the same is not complied with, then it must be
recorded by the Special Court. In other words, the
reasons must be beyond the control of the Special Court or
the reasons were such, which prevented the recording
evidence of the child within the stipulated period. Thus,
the reasons must be strong enough for being accepted and
sufficient in law to absolve the Special Court for not
recording the evidence of the child within the stipulated
period. But, if for any reason the evidence of the child is
not recorded within the stipulated period, then the same
cannot be discarded only on that score.
25. We have already highlighted the difference
between a statement recorded under Section 164 of
Cr.P.C. and evidence recorded under sub-section (1) of
Section 35 of the POCSO Act. In our view, the recording of
statement under Section 164 of Cr.P.C. being prior to the
commencement of the trial, it cannot be considered to be
evidence under sub-section (1) of Section 35 of the POCSO
Act.
26. In this regard reference could be made to
Section 3 of the Evidence Act, which is the interpretation
clause which defines "Evidence" to mean and include, (1)
all statements which the Court permits or requires to be
made before it by witnesses, in relation to matters of fact
under inquiry, such statements are called oral evidence
and (2) all documents including electronic records
produced for the inspection of the Court, such documents
are called documentary evidence.
27. It is therefore observed that the
statement recorded under Section 164 of
Cr.P.C. made in the course of investigation by
the victim child, cannot be considered as
evidence recorded under Section 35 of the
POCSO Act.
28. The weightage to be given to a statement
made by any person to a police officer in the course of any
investigation if reduced to writing and signed by the
person making it and the importance of such a statement,
is discussed in the case of Tahsildar Singh and
another vs. State of U.P. (AIR 1959 SC 1012),
(Tahsildar Singh). In that case, the object and
purpose of recording the statement under Section 162 of
Cr.P.C. has been discussed. Intention of that provision is
to protect the accused against the user of the statements
of witnesses made before the police during investigation at
the trial presumably on the assumption that the said
statements were not made under circumstances inspiring
confidence. Both the Section and the proviso thereto
intend to serve primarily the same purpose, i.e., the
interest of the accused. Thus, the statement made before
a police cannot be used for any purpose whatsoever
against the accused, but it enables the accused to rely
upon it for a limited purpose of contradicting the witnesses
in the manner provided in Section 145 of the Evidence Act,
1872 by drawing his attention to parts of the statement
intended for contradiction. It cannot be used for
corroboration of a prosecution or a defence witness
or even a Court witness, nor can it be used for
contradicting a defence or a Court witness. The only
limited use is for the purpose of contradicting the
witness, as per Section 145 of the Evidence Act.
Section 145 of the Evidence Act indicates the manner
in which such contradiction is brought out. The law
with regard to recording of statement under Section
162 of Cr.P.C. has been summed up in Tahsildar
Singh as under:
"26. From the foregoing discussion the
following propositions emerge:
(1) A statement in writing made by a witness
before a police officer in the course of
investigation can be used only to
contradict his statement in the witnessbox
and for no other purpose;
(2) statements not reduced to writing by the
police officer cannot be used for
contradiction;
(3) though a particular statement is not
expressly recorded, a statement that can
be deemed to be part of that expressly
recorded can be used for contradiction,
not because it is an omission strictly socalled
but because it is deemed to form
part of the recorded statement;
(4) such a fiction is permissible by
construction only in the following three
cases:
(i) when a recital is necessarily
implied from the recital or recitals
found in the statement ;
illustration: in the recorded
statement before the police the
witness states that he saw A
stabbing B at a particular point of
time, but in the witness-box he
says that he saw A and C
stabbing B at the same point of
time; in the statement before the
police the word " only " can be
implied, i.e., the witness saw A
only stabbing B;
(ii) a negative aspect of a positive
recital in a statement;
illustration: in the recorded
statement before the police the
witness says that a dark man
stabbed B, but in the witness-box
he says that a fair man stabbed
B; the earlier statement must be
deemed to contain the recital not
only that the culprit was a dark
complexioned man but also that
be was not of fair complexion;
and
(iii) when the statement before the
police and that before the Court
cannot stand together;
Illustration: the witness says in
the recorded statement before
the police that A after stabbing B
ran away by a northern lane, but
in the Court he says that
immediately after stabbing he ran
away towards the southern lane;
as he could not have run away
immediately after the stabbing,
i.e., at the same point of time,
towards the northern lane as well
as towards the southern lane, if
one statement is true, the other
must necessarily be false.
27. The aforesaid examples are not
intended to be exhaustive but only
illustrative. The same instance may fall
under one or more heads. It is for the
trial Judge to decide in each case after
comparing the part or parts of the
statement recorded by the police with
that made in the witness-box, to give a
ruling, having regard to the aforesaid
principles, whether the recital intended
to be used for contradiction satisfies the
requirements of law."
29. In Rama Kishan Singh vs. Harmit Kaur and
another, [AIR 1972 SC 468], the Hon’ble Supreme
Court has opined that the statement under Section 164
Cr.P.C. is not substantive evidence. It could be used to
corroborate the statement of a witness or to contradict a
witness. In Ram Charan vs. State of U.P., [AIR 1968
SC 1270], also, it has been observed that the evidence of
witnesses whose statements are recorded under Section
164 Cr.P.C. has to be approached with caution.
30. In Balak Ram and another vs. State of
U.P., [AIR 1974 SC 2165], it was observed that
witnesses whose statements are recorded under Section
164 feel tied to their previous statements and have but a
theoretical freedom to depart from their earlier version. A
prosecution for perjury could be the price of that freedom.
It is, of course, open to the Court to accept the evidence of
a witness whose statement was recorded under section
164, but the salient rule of caution must always be borne
in mind. That is all the more necessary when almost all the
eye witnesses are subjected to this tying-up process.
31. In Dhanabal and another vs. State of Tamil
Nadu, [AIR 1980 SC 628], one of the legal contention
raised by the learned counsel was that the High Court was
in error in taking into account the statements recorded
from the witnesses under Section 164 Cr.P.C. in coming to
the conclusion that the evidence given by them in the
Committal Court could be relied upon. According to the
Hon’ble Supreme Court, though the statements made
under Section 164 Cr.P.C. is not evidence, it is
corroborative of what has been stated earlier in the
Committal Court vide State of Rajasthan vs. Kartar
Singh, [(1971) 1 S.C.R. 56]. It was further observed
that the statement of witnesses obtained under Section
164 Cr.P.C. can be relied upon for corroborating the
statements made by witnesses in the committal court.
Hence, the mere fact that the witnesses statement was
previously recorded under Section 164 Cr.P.C. will not be
sufficient to discard it. It was observed that the court
ought to receive it with caution and if there are other
circumstances on record which lend support to the truth of
the evidence of such witnesses, it can be acted upon. It is
for the Court to consider, taking into account all the
circumstances including the fact that the witness had
resiled, in coming to the conclusion as to whether the
witness should be believed or not.
32. Recently, the Hon’ble Supreme Court in
Somasundaram @ Somu vs. State Reptd. by the
Deputy Commissioner of Police, [(2020) 7 SCC 722],
(Somasundaram) has discussed the purpose and value of
statement of confession recorded under Section 164
Cr.P.C. and in the context of whether such a statement
recorded under Section 164 Cr.P.C. constitutes substantial
evidence. It was observed that it cannot be used as
substantive evidence and it can only be used for
contradicting or corroborating the maker of the statement.
While placing reliance on George vs. State of Kerala,
[(1998) 4 SCC 605], and while referring to R.Shaji vs.
State of Kerala, [(2013) 14 SCC 266], it was observed
that the statement of witnesses recorded under Section
164 Cr.P.C. has two-fold object: firstly, to deter the
witness from changing his stand by denying the contents
of his previously recorded statement, and secondly, to tide
over immunity from prosecution by the witness under
Section 164 Cr.P.C. It was also categorically observed that
if a statement of witness is recorded under Section 164
Cr.P.C., his evidence in Court should be discarded, is not
at all warranted, vide Jogendra Nahak vs. State of
Orissa, [(2000) 1 SCC 272].
33. It was also observed that Section 157 of the
Evidence Act makes it clear that a statement recorded
under Section 164 Cr.P.C., can be relied upon for the
purpose of corroborating statements made by witnesses in
the committal Court or even to contradict the same. As
the defence had no opportunity to cross-examine the
witnesses whose statements are recorded under Section
164 Cr.P.C., such statements cannot be treated as
substantive evidence, vide CCE vs. Duncan Agro
Industries Limited, [(2000) 7 SCC 53]. Ultimately, in
paragraph No.84 in Somasundaram, the Hon’ble Supreme
Court observed as under:
“84. Thus, in a case where a witness, in
his statement under Section 164 Cr.P.C.,
makes culpability of the accused beyond
doubt but when he is put on the witness
stand in the trial, he does a complete
somersault, as the statement under
Section 164 is not substantial evidence
then what would be the position? The
substantive evidence is the evidence
rendered in the Court. Should there be no
other evidence against the accused, it
would be impermissible to convict the
accused on the basis of the statement
under Section 164 Cr.P.C.”
34. In this context, we would like to refer to State
of Karnataka, by Nonavinakere Police vs. Shivanna @
Tarkari Shivanna, [(2014) 8 SCC 743], wherein a
suggestion has been made to Union of India for introducing
necessary amendment to the Criminal Procedure Code,
1973 involving trial for the charge of rape by directing that
all the witnesses who are examined in relation to the
offence and incident of rape cases should be straightway
produced preferably before a Lady Judicial Magistrate for
recording their statement to be kept in sealed cover and
thereafter, the same be treated as evidence at the stage of
trial by producing the same on record in accordance with
law which may be put to test by subjecting it to crossexamination.
That the statement of victim should, as far
as possible, be recorded preferably before a Lady Judicial
Magistrate under Section 164 Cr.P.C. skipping over the
recording of statement by the Police under Section 161
Cr.P.C. which in any case is inadmissible except for
contradiction so that the statement of the accused
thereafter be recorded under Section 313 Cr.P.C. It was
further observed that the accused then can be committed
to the appropriate Court for trial whereby the trial court
can straightway allow cross examination of the witnesses
whose evidence were recorded earlier before the Judicial
Magistrate; while also holding that the recording of
evidence of the victim and other witnesses multiple times
ought to be put to an end which is the primary reason for
delay of the trial. It was observed that the “evidence”
recorded for the first time itself before the Judicial
Magistrate under Section 164 Cr.P.C. be kept in a sealed
cover to be produced and treated as “deposition of the
witnesses” and hence admissible at the stage of trial with
liberty to the defence to cross- examine them with further
liberty to the accused to lead his defence witness and
other evidence with a right to cross-examination by the
prosecution, which cuts short and curtail the protracted
trial. That this should be introduced at least for trial of
rape cases which would result in speedy justice.
35. On considering the suggestions offered before
the Court and exercising powers under Article 142 of the
Constitution, the interim directions in the form of
mandamus to all the police stations in charge in the entire
country to follow the direction of this Court were issued,
which are as follows:
“9. x x x
(i) Upon receipt of information relating to
the commission of offence of rape, the
Investigating Officer shall make
immediate steps to take the victim to
any Metropolitan/preferably Judicial
Magistrate for the purpose of recording
her statement under Section 164 Cr.P.C.
A copy of the statement under Section
164 Cr.P.C. should be handed over to the
Investigating Officer immediately with a
specific direction that the contents of
such statement under Section 164
Cr.P.C. should not be disclosed to any
person till charge sheet/report under
Section 173 Cr.P.C. is filed.
(ii) The Investigating Officer shall as far as
possible take the victim to the nearest
Lady Metropolitan/preferably Lady
Judicial Magistrate.
(iii) The Investigating Officer shall record
specifically the date and the time at
which he learnt about the commission of
the offence of rape and the date and
time at which he took the victim to the
Metropolitan/preferably Lady Judicial
Magistrate as aforesaid.
(iv) If there is any delay exceeding 24 hours
in taking the victim to the Magistrate,
the Investigating Officer should record
the reasons for the same in the case
diary and hand over a copy of the same
to the Magistrate.
(v) Medical Examination of the victim:
Section 164 A Cr.P.C. inserted by Act 25
of 2005 in Cr.P.C. imposes an obligation
on the part of Investigating Officer to get
the victim of the rape immediately
medically examined. A copy of the
report of such medical examination
should be immediately handed over to
the Magistrate who records the
statement of the victim under Section
164 Cr.P.C.”
36. Although, learned counsel for the petitioner
placed reliance on Shivanna @ Tarakari Shivanna to
contend that the statements made under Section 164 of
Cr.P.C. has to be construed as substantive evidence, we do
not think that the said contention can be accepted in view
of the judgments of the Hon’ble Supreme court referred to
above and particularly the latest judgment in
Somasundaram @ Somu wherein the earlier judgments on
the point have been considered. We have also already
noted, evidence stricto senso is what is recorded by the
Special Court before itself and cannot be equated with the
statement of the victim under Section 164 of Cr.P.C.
37. In this context, it would be useful to refer to
one of the earlier judgments of the Privy Council on the
point in the case of Mamand and others vs. Emperor,
[AIR 1946 PC 45], wherein it has been observed that a
statement under Section 164 Cr.P.C. cannot be treated as
substantive evidence of the facts stated. Such a
statement can be used to discredit the evidence of the
witness but not for any other purpose. Further, where the
Court in view of the statement under Section 164 Cr.P.C.,
considers the witness to have been won over by the
defence, the correct attitude for the Court to adopt is to
entirely ignore his evidence.
38. In view of the aforesaid discussion, we
answer question No.1 by holding that the statement
recorded under Section 164 of Cr.P.C. cannot be
considered to be evidence under Section 35 of the
POCSO Act.
SECOND POINT:
39. As far as the second point of reference is
concerned, the same relates to sub-section (2) of Section
35 of the POCSO Act which mandates 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. The reasons for prescribing a period of one
year for completion of the trial are not far to see. The
main reason being, the victim child must not only be
rendered speedy justice but, at the same time, it is
necessary to get over the legal proceeding at the earliest,
so that the child could concentrate on rehabilitation and
get on with his or her life. Prolonging the trial before the
Special Court for years together, like any other sessions
case, would be futile and frustrate the intention of the
parliament as well as the object of POCSO Act. It must be
remembered that the object and purpose of the said Act
being child-centric, all efforts must be made by all stakeholders
under the said Act, including the Special Court, to
complete the trial within a period of one year from the
date of taking cognizance of the offence under the said
Act. But, the Parliament, while having such a noble
intention, at the same time, has not lost sight of the reality
and technical difficulties faced by criminal courts including
the Special Courts, in particular and criminal justice
system, in general. Therefore, the use of the expression,
"as far as possible" in the provision. But, the said
expression does not in any way permit any recalcitrant
attitude, nor does it countenance a slow and tardy trial or
envisage a re-living of the trauma by the victim child for
years together. The expression "as far as possible", is
used by the Parliament, having regard to the genuine
difficulties faced in the conclusion of a trial concerning a
victim child under the provisions of the POCSO Act. If the
evidence of the child is to be recorded within a period of
thirty days from the date of taking cognizance of the
offence, the trial under the provisions of the POCSO Act
being a sessions trial, would mean that all provisions of
Cr.P.C. which are not inconsistent with the provisions of
the POCSO Act would apply and hence, there may be
reasons beyond the control of the Special Court, for not
being able to complete the trial under the POCSO Act
within a period of one year from the date of taking
cognizance of the offence.
40. The reasons for the delay could be enumerated
as under, which are only illustrative and not exhaustive:
• Recording the evidence of the victim may not
be easy, for, the victim may be,
o deaf and/or dumb,
o of tender age who may not be in a position
to explain the incident,
o Child with mental or physical disability;
o Victim child may cry during recording of
evidence or have other emotional
syndromes; hence, the case needs to be
adjourned at that point/stage;
• Appointment of Special Educators: The victims
and their parents may require special attention
and education in respect of the incident and
the proceedings in the trial as the victim may
be emotionally charged;
• Appointment of Psychiatrists: They may not be
available in District Head quarters during the
trial to provide counselling to the victim;
• Shortage of man power and lack of qualified
persons as counsellor;
• Provisions made under the Act are not properly
implemented;
• Lapses on the part of the prosecution as these
cases are not viewed seriously, and by ignoring
that it would affect the childhood of the victims
in particular and society in general;
41. Be that as it may. The second point of
reference is, whether, the accused is entitled to be
released on bail if the evidence of the child has not been
recorded within a period of thirty days of taking cognizance
of the offence or if the Special Court does not complete the
trial within a period of one year from the date of taking
cognizance. Such an interpretation would be an additional
clause under the said provision and giving an additional
right to the accused. Even under Section 309 of Cr.P.C.,
the trial of the proceedings has to be continued from dayto-
day until all the witnesses in attendance have been
examined, unless the Court finds the adjournment of the
same beyond the following day to be necessary for the
reasons to be recorded. The proviso thereto has been
amended with effect from 03.02.2013 and the proviso
thereto deals with trial relating to offence under Section
376 and related Sections of the Indian Penal Code,
wherein the trial has to be completed within a period of
two months from the date of filing of the charge-sheet, as
far as possible. Thus, the expression 'as far as possible' is
also found in proviso to sub-section (1) of Section 309 of
Cr.P.C. Section 309 of Cr.P.C., also speaks about the
circumstances under which no adjournment could be
granted. The use of the expression “as far as possible” is
also on account of the fact that under Section 37 of the
POCSO Act, the trial has to be conducted in camera and in
the presence of the parents of the child or any other
person in whom the child has trust or confidence. But, if
the Special Court is of the opinion that the child needs to
be examined at the place other than the Court, it shall
proceed to issue a commission in accordance with the
provisions of Section 284 of Cr.P.C. In such a case, the
circumstances under which commission for examination of
witness is issued under Section 284 of Cr.P.C., would
apply, namely that if the child cannot be procured without
an amount of delay, expense or inconvenience, but in the
circumstances of the case, would be unreasonable, then
the Special Court may dispense with such attendance and
may issue a commission for the examination of witness in
a place other than the Court. The provisions dealing with
Commission for the examination of witness mutatis
mutandis apply when the Special Court orders examination
of the child at a place other than the Court. Therefore, in
such circumstances, there may be delay in recording the
evidence of the child within a period of thirty days of
taking cognizance of the offence by the Special Court or
even delay in completion of trial within a period of one
year from the date of taking cognizance of the offence. In
such an event, it cannot be treated to be a default, which
would enure to the benefit of the accused so as to give the
accused a right to be released on bail.
42. It is observed that the object and purpose of
Section 35 of the POCSO Act is for the benefit of the child
victim and is not to be considered as an additional clause
for the purpose of granting bail to the alleged perpetrator
or the accused.
43. As discussed above, there may be various
reasons and circumstances beyond the control of the
Special Court under which the conclusion of the
proceedings within a period of one year may not happen.
As already noted, the reasons for the same have been
discussed above. Under such circumstances, the accused
cannot enforce the right to be released on bail. No such
right is envisaged under the said provisions of the Act and
the same cannot be read into it by way of an interpretation
which may go against the interest of the child victim. If
the aforesaid interpretation is to be made then, there
would be every attempt made to delay the proceedings
before the Special Court beyond the period of one year and
seek release of accused on bail. Such a position cannot be
encouraged nor is it envisaged under the POCSO Act.
44. Hence, any order passed by following the
dictum in Vinay with regard to grant of bail to the accused
on the premise there has been a delay in recording
evidence or for that matter, non-conclusion of the
proceedings within a period of one year from the date of
taking cognizance by the Special Court, is not good law
and it cannot be a precedent for future cases. In the
circumstances, we hold that the order passed in Vinay
cannot be treated as a judicial precedent in future cases.
45. Next, it would be necessary to consider the
following judicial precedent concerning Section 35 of the
POCSO Act and to answer the reference accordingly.
Vinay:
a) In the aforesaid case, this Court noticed the
accused therein was procured before the Special Court on
19.03.2016 and the case was posted for four hearings 'for
framing of charges and plea' and thereafter, for evidence
and again on 15.04.2017, it was posted ‘for framing of
charges and plea’. Considering the omission on the part of
the Special Court in that case in not recording the evidence
of the victim child within a period of thirty days from the
date of taking cognizance, in compliance of the provisions
of Section 35(1) of the Act, the petitioner therein was
granted interim bail and the Registrar General of this was
directed to make an enquiry about the non-compliance of
the provisions of Section 35(1) of the Act by the concerned
Special Court and submit a report before this Court as
expeditiously as possible. The Registrar General submitted
his report. The same was perused and it was found that
several steps were taken in the matter from 05.03.2016
onwards in that case and it was found that the evidence of
the child had not been recorded as per Section 35(1) of
the Act and the importance of recording evidence as per
that provision was emphasized, despite heavy load of
work, lack of time, non-production of properties, etc.,
before the Special Court. It was observed that even if the
investigating officer failed to produce the properties on the
date called for, that would not stop the Special Court from
recording the evidence of the victim child and adjourn the
case to fix the next date of hearing. It was also
emphasized that the Special Courts must comply with the
mandate of Section 35(1) of the Act in its true letter and
spirit.
b) However, in the said case, the accused was
enlarged on bail on certain terms and conditions as he was
already enlarged on interim bail during the pendency of
the said petition.
c) The said order seems to have been understood
as paving the way to grant bail to the accused in the event
the evidence of the victim child is not recorded in terms of
Section 35(1) of the Act. In fact, that is the tenor of the
submission of the learned counsel for the petitioner herein
also. We think the judgment in Vinay cannot be a
precedent to be followed so as to enlarge the accused on
bail when the mandate of Section 35 are not followed.
d) Reliance has been placed on the order passed
by this Court at Dharwad Bench in Aslam vs. State of
Karnataka, (Criminal Petition No.100713 of 2020
disposed of on 13.08.2020), wherein reference was made
to the order in Vinay and it was also observed that there
was no material placed on record to show that there was
non-compliance of Section 35(1) of the Act. Despite the
said fact the accused was enlarged on bail.
e) In Lakkappa vs. The State of Karnataka
(Criminal Petition No.100135/2020, disposed of on
02.06.2020), the facts noted were that when the minor girl
willingly joined the company of accused/petitioner and
there was no specific allegation that the accused/petitioner
forcibly had sexual intercourse with the victim girl. Under
these circumstances, this Court was persuaded to agree
with the contention of the counsel for the
accused/petitioner that the victim/prosecutrix has
voluntarily gone along with the petitioner without there
being any pressure or threat. This Court also noted that
the accused had married the victim girl. There was also no
material forthcoming to infer that in the event of the
accused/petitioner being enlarged on bail, he may flee
away from justice or tamper the prosecution witnesses. In
the aforesaid circumstances, the accused/petitioner therein
was enlarged on bail.
f) In Wilson vs. the State of Karnataka, (Criminal
Petition No.201591/2019 connected with Criminal Petition
No.201592/2019 disposed of on 07.01.2020) bail was
granted to accused Nos.4 and 5 even though the allegation
against them was they arranged marriage of the victim girl
with accused No.1 and the entire case was as such against
accused No.1, under the provisions of the Indian Penal
Code as well as the POCSO Act.
46. It is unnecessary to multiply the orders relied
upon by the learned counsel for the petitioner, as, a
reference to the judgment of the Hon’ble Supreme Court,
in Neeru Yadav vs. State of Uttar Pradesh and
another, [(2016) 15 SCC 422], which deals with the
facts to be considered while granting bail would clearly be
the guiding factors while considering the case even under
the provisions of the POCSO Act. The factors are:
(i) The nature of accusations and the
severity of the punishment, in case
of the accusation entails a
conviction and the nature of
evidence in support of the
accusations;
(ii) Reasonable apprehensions of the
witnesses being tampered with or
the apprehension of there being a
threat for the complainant;
(iii) Prima facie satisfaction of the court
in support of the charge.
Of course, this would depend on (i) whether there is
any prima facie or reasonable ground to believe that the
accused had committed the offence; (ii) danger of the
accused absconding or fleeing, if released on bail; (iii)
reasonable apprehension of the witnesses being
influenced; and ultimately, (iv) danger of justice being
thwarted by grant of bail. The emphasis of learned
counsel for the petitioner is to uphold the rights of the
accused when the provisions of Section 35 of the POCSO
Act are not complied with and therefore, to release
accused on bail. That is not the object and purpose of
Section 35.
47. In this context, we would refer to a recent
decision of the Hon’ble Supreme Court in Varinder Kumar
vs. State of Himachal Pradesh, [(2020) 3 SCC 321],
(Varinder Kumar), wherein it has been observed that
individual rights of the accused as well as the societal
interest for bringing the offender to book and for the
system to send the right message to all in the society—be
it the law-abiding citizen or the potential offender, have to
be balanced. “Human Rights” are not only of the accused
but also of the victim, the symbolic member of the society.
In the aforesaid case, the Hon’ble Supreme court
clarified the judgment in Mohan Lal vs. State of Punjab,
[(2018) 17 SCC 627], (Mohan Lal), to be effective
prospectively from the date of judgment and not being
applicable to criminal prosecutions, trials and appeals prior
to the law laid down in it. It was observed that the
judgment in Mohan Lal cannot also be allowed to become a
springboard by an accused for seeking acquittal
irrespective of all other considerations pursuant to an
investigation and prosecution when the law in that regard
was unclear. In Mohan Lal, it was observed that it was
impermissible for an informant acting as an investigating
officer and it was held to vitiate the conviction irrespective
of all other issues. While distinguishing the judgment in
Mohan Lal, the Hon’ble Supreme Court observed that the
criminal justice delivery system cannot be allowed to veer
exclusively for the benefit of the offender making it
unidirectional exercise. A proper administration of criminal
justice delivery system requires balancing the rights of the
accused and the prosecution.
48. It would be useful to refer to Arvind Kumar
K.S. vs. The State of Karnataka (Criminal Petition
No.3672/2020 disposed of on 01.09.2020), wherein it has
been held by this Court that the main object of holding
trial is to ascertain the truth by the Court by recording
evidence, assessing the same in the scale of balance and
decide the case on merits.
Hence, point of reference No.2 is answered
accordingly.
49. If for reasons beyond the control of the Special
Court, the evidence of the child is not recorded within the
period of thirty days of the Special Court taking cognizance
of the offence, or if the trial itself is not completed within a
period of one year from the date of cognizance of the
offence, the same cannot lead to the accused being
released on bail. The object and purpose of Section 35 of
the POCSO Act is to ensure that the victim child is secured
from the trauma of trial of the case at the earliest so that
she or he could be rehabilitated and reintegrated into
society at the earliest. The said provision is not to be
interpreted in favour of the accused so as to mandate
release of the accused, if for any reason, evidence is not
recorded within a period of thirty days of taking cognizance
of the offence or the Special Court not completing the trial
within a period of one year from the date of taking
cognizance of the offence.
50. In our view, non-compliance of Section 35 of
the POCSO Act cannot be the basis for releasing the
accused on bail as that would be a misreading of the
provision. One has to bear in mind the fact that the
docket explosion under the POCSO Act is not
commensurate with the sufficient number of Special Courts
being constituted with the requisite human resources as
well as infrastructure. It may be practically impossible for
the trial court to conclude the trial within one year from
the date of cognizance by the said Court in a majority of
the cases. But, that does not give a right to the accused
to seek bail for the reason that the mandate under Section
35 of the POCSO Act has not been completed.
In the circumstances, we answer the questions
referred to against the petitioner and accordingly,
dispose of this reference.
51. While we have answered the questions
referred, against the petitioner, at the same time, we
would like to observe that there should be a healthy coordination
between all the stake-holders involved in the
implementation of the POCSO Act. All assistance must be
given to the Special Court for timely adjudication of the
cases involving a child victim under the provisions of the
POCSO Act. In this regard, we observe that the Presiding
Officer of the Special Court under the POCSO Act must
have the capacity to co-ordinate between the concerned
stake-holders, namely, the prosecution, investigating
officer, counsel, accused, victim, support persons, etc., so
that no stake-holder, on account of the vested interest or
otherwise, would be able to procrastinate the matter and
thereby prolong the trial and defeat the object and
purpose of the POCSO Act. In this regard, we emphasize
that the Special Court, prosecution, investigating officer
and the counsel for the accused all have their roles cut out
and hence, must discharge their duties under the Act in
the most effective manner.
52. The Special Public Prosecutor who are
appointed to handle the cases under the POCSO Act must
be trained and be competent and develop the capacity to
handle such cases. It is needless to observe that the
Special Public Prosecutor has a vital and significant role to
play which has a bearing on the result of the case.
Therefore, competent Special Public Prosecutors have to
be appointed by the State to handle cases under POCSO
Act.
53. According to Ms.Jyoti Mathur, Director of
‘Kailash Satyarthi Children’s Foundation’, “a victim of
sexual abuse is not a victim of one abuse but multiple
abuses – physical abuse, emotional abuse, mental abuse,
stigma, neglect and overall deprivation of the right to live
with dignity. While a time-bound legal process and childcentric
jurisprudence is non-negotiable, the role of experts
in helping him walk this arduous journey is equally
essential.” (Source: “Ensuring Justice for Every Child”, Deccan
Herald, Bengaluru Edition, dated 13.04.2021).
54. Before parting with this case, we would like to
observe that the Central Government has issued directions
to the State Governments for setting up of Special Courts
with requisite infrastructure for disposal of the cases
arising under the POCSO Act in accordance with the said
provisions, following the directions of the Hon’ble Supreme
Court to set up Fast Track Court and exclusive POCSO
Courts.
55. No doubt, in the State of Karnataka, additional
Courts have been set up, but the requisite infrastructure,
including the child witness room and other procedural
requirements mandated under the Act for establishing a
child friendly Court have to be complied with by the State
Government.
56. In this context, we also note that apart from
rendering justice to the child victim, concomitant support
service systems have also to be provided, as the child
victim faces a two-fold trauma—physical injury and
psychological trauma. Insofar as the medical treatment
for physical injuries is concerned, it should be preferably
free and in Government Hospitals. Hence, there is need to
improve medical facilities for the victims of child abuse by
notifying a dedicated unit in every District Hospital and
further, where medical complications have to be treated
urgently, provisions must be made for enabling the doctors
at the District Hospitals to refer the victim to a private
hospital for providing proper medical treatment to the
victim. In the context of mental trauma, we note that the
role of the mental health professionals is of critical
importance. There is need to provide such services at a
reasonable cost to be borne by the Government. Hence,
the State must identify mental health professionals
available throughout the State so that the victim child
could avail all the said services.
57. More importantly, there is a mandate under
Section 32(1) of the POCSO Act to appoint a Special Public
Prosecutor for every Special court. Initially, the public
prosecutor attending the Court which was conferred with
the jurisdiction as Special Court to handle such cases
under the POCSO Act, was also appointed as the Special
Public Prosecutor. It is not known whether the said
practice is continuing. We think that the time has now
come to discontinue the said practice and appoint
competent Special Public Prosecutors exclusively attached
to the Special Courts dealing with matters under the
POCSO Act, so that the time-frame under Section 35 of the
POCSO Act in recording evidence and concluding with the
trial and adjudication is as per the said provision.
58. Also, support persons have to be provided to
the victim child, as mandated under the POCSO Act
throughout the process of investigation and trial to act as a
link between the child and the Special Court dealing with
the adjudication of the cases. The support person has to
prepare the child for Court proceedings and ensure that
the child’s views are heard and are taken into account at
every stage of the proceedings. The State has to appoint
adequate number of support persons on a priority basis if
real justice is to be done to the victim during the course of
investigation and trial.
59. In the above context, we issue the following
directions:
(I) We direct the State to take steps for setting up
of the requisite number of Special Courts to try
cases under the POCSO Act;
(II) Further, the State is directed to provide the
necessary infrastructure and man power for the
Special Courts under POCSO Act;
(III) The appointment/posting of exclusively trained
prosecutors to handle the cases before the
Special Courts under the provisions of the
POCSO Act shall be made forthwith wherever
such prosecutors are not yet appointed;
(IV) We direct that a dedicated unit is set up in
every District Hospital to attend to the child
victim and provide proper medical facilities and
whenever necessary referral to a private
hospital be permitted;
(V) The State is also directed to make available
mental health professionals to every child to
overcome the trauma and for rehabilitation and
reintegration, the cost of which is to be borne
by the State;
(VI) Further, the State is also directed to appoint
adequate support persons to the child victims
and to conduct a study, whether, they are
discharging their duties effectively and take
immediate measures as per the
recommendations of the study.
60. It is needless to observe that the aforesaid
directions should be complied with on a timely basis, lest
the object and purpose of the POCSO Act stand diluted on
account of the non-implementation of the provisions of the
POCSO Act in its true letter and spirit by the State and
other stake-holders.
61. Last but not the least, we direct the Presiding
Officers of all Special Courts to comply with Section 35 of
the POCSO Act in the matter of recording of evidence of
the victim child and the conclusion of the trial within the
time stipulated under the said provision so that the justice
delivery system does not in any way contribute to the
trauma, mental disturbance and anxiety of the victim child,
which could lead to severe impact on the behaviour and
personality of the Child.
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