Whether the Pocso court must record reasons if he could not record evidence of child within thirty days of taking cognizance of offence?

Even otherwise, Section 35 of the POCSO Act allows the Special Court taking cognizance of the offence to record evidence of the  child after a period of thirty days from the date on which cognizance of the offence has been taken. The only rider in this regard imposed by the provision of law is that the Court must record reasons for the delay. In the present case, while allowing recording of evidence after a period of thirty days from the date of taking of cognizance, the Special Court did not record any reasons for the delay. But, the deficiency would have to be considered only as an irregularity in the light of the petitioner not raising any specific objection to the application vide exhibit 24. If the petitioner had raised objection and showed that there was any possibility of prejudice being caused to his defence, the case would have been different and perhaps, the challenge now made to the order dated 2nd March 2016 by the petitioner would have been required to be considered in the perspective of the prejudice factor. This is not the case here and, therefore, I do not think that failure of the learned Special Judge to record reasons for belated recording of the evidence of the victim has resulted in an illegality, causing prejudice to the defence of the petitioner. 

{Para 7}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH : NAGPUR

Criminal Writ Petition No. 68 of 2018

 Shubham Vilas Tayade,  Vs The State of Maharashtra, through Police

Coram : S. B. Shukre, J

Dated : 31st January 2018

Print Page

Bombay HC: The court should record Evidence of victim of an offence Under Pocso Act within 30 days from chargesheet.

  First and foremost, it is pertinent to note that under Section 35(1) of the POCSO Act, the evidence of the child/victim is to be recorded by the Special Court within a period of 30 days of taking cognizance of the offence and reasons for delay, if any, are to be recorded by the special Court. Sub-section (2) 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 case. Having regard to the large number of cases under the POCSO Act and paucity of Judges, it may not be possible to complete the trial as far as possible within one year from the date of taking cognizance of the case and therefore, in cases such as POCSO, where the child/victim is young, it is imperative that the learned Judge should record at least the evidence of the child/victim, as expeditiously as possible, lest the minor forgets the incident due to passage of time. Younger the child/victim, earlier the recording and strict adherence to sub-section (1) of Section 35 of the POCSO Act. {Para 12}

In the High Court of Bombay

(Before Revati Mohite Dere, J.)

Atul Gorakhnath Ambale Vs State of Maharashtra 

Criminal Bail Application No. 3242 of 2019

Decided on April 1, 2022

Citation: 2022 SCC OnLine Bom 873 : (2022) 2 AIR Bom R (Cri) 478 : (2022) 4 Bom CR (Cri) 89

Print Page

Whether the evidence recorded U/S 164 of Cr.P.C. can be considered as an evidence U/S 35 of the POCSO Act?

 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?

37. 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.

38. 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 v. 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.

39. 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.

 In the High Court of Karnataka(Principal Bench at Bengaluru)

(Before B.V. Nagarathna and M.G. Uma, JJ.)

Criminal Petition No. 2951/2020:

Hanumantha Mogaveera Vs State of Karnataka, 

Decided on April 23, 2021

Citation: 2021 SCC OnLine Kar 12300 : (2021) 3 KCCR 1897 (DB)

Print Page