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2015 DIGILAW 285 (UTT)

PANKAJ KUMAR MINOR v. STATE OF UTTARAKHAND

2015-05-28

SUDHANSHU DHULIA

body2015
JUDGMENT Hon’ble Sudhanshu Dhulia, J. (Oral) 1. This application has been filed by the applicant before this Court invoking the inherent and extraordinary jurisdiction of this Court under Section 482 Cr.P.C. The applicant is a minor, who has been accused in the First Information Report, which was subsequently registered as Criminal Case No. 6 of 2014, under Sections 354, 376(2)(i) and 506 of I.P.C. and Section 3 read with Section 4 of the Protection of Children from Sexual Offences Act, 2012 (from hereinafter referred to as “POCSO”) pending before the Principal Magistrate, Juvenile Justice Board, Almora. 2. Apart from the applicant there is another co-accused, namely, Jeevan Chandra in the present case. Since the applicant was a minor his trial has been separated, and trial is going on before the Juvenile Justice Board, Almora. This Court has been informed that the co-accused has already been acquitted in the said case. In the present case, the evidence of prosecution has already been closed on 10.03.2015 and the statement of the accused under Section 313 of Cr.P.C. has also been recorded on 13.03.2015, 20.03.2015 and 06.04.2015. Thereafter, an application, under Section 311 of Cr.P.C., has been moved by the applicant for re-examining the prosecutrix – Km. Basanti, who was earlier examined as P.W.3. This application has been rejected by the Principal Magistrate, Juvenile Justice Board vide order dated 18.04.2015. Aggrieved by the said order the applicant preferred revision before the learned Sessions Judge, Almora, which was also dismissed vide order dated 08.05.2015. Hence the present application under Section 482 of Cr.P.C. before this Court. 3. Heard Mr. Vinod Sharma, learned counsel for the applicant, Mr. K.S. Rautela, learned G.A. for the State and perused the record. 4. Learned counsel for the applicant Mr. Vinod Sharma has argued at length citing various decisions of the Hon’ble Apex Court, and more particularly, the decision of Hon’ble Apex Court in Natasha Singh Vs CBI (State) reported in 2013 (5) SCC 741 * wherein it has been held that power conferred under Section 311 of Cr.P.C. must be invoked by the court to reach to the truth of the case. 5. Learned G.A. for the State – Mr. K.S. Rautela, on the other hand, argued that this application has rightly been rejected by both the courts below, as it was found that such an application for reexamination should not be allowed in the interest of justice. 5. Learned G.A. for the State – Mr. K.S. Rautela, on the other hand, argued that this application has rightly been rejected by both the courts below, as it was found that such an application for reexamination should not be allowed in the interest of justice. Undoubtedly the powers under Section 311 of Cr.P.C. inter alia to reexamine the witnesses are very wide. In a befitting case it must be exercised for the very purpose of a criminal trial to reach the truth of the matter. All what has to be seen by this Court, therefore, is as to whether the application for re-examining the prosecutrix, who is admittedly also a minor (14 years of age), has been rightly rejected or not. 6. The trial court has given a categorical finding that the prosecutrix is a minor girl, who had earlier come to the court twice, initially for giving her statement under Section 164 of Cr.P.C. and thereafter for the examination-in-chief and cross examined. The Court has further observed that she was scared when she gave her examination-in-chief and later her cross-examination. She is admittedly a child. Not only this, under the special Act, namely, POCSO, the legislation has given further protection to such a child under Section 33(5) of the POCSO, where courts should see to it that child should not be called repeatedly for examination. Section 33(5) of the POCSO reads as under:- “33. Procedure and powers of Special Court – (1) ….. (2) ….. (3) ….. (4) ….. (5) The Special Court shall ensure that the child is not called repeatedly to testify in the court.” 7. Apart from the above provision of law, the application moved by the defence (under Section 311 of Cr.P.C.) all that has to be stated is that on earlier occasion P.W.3 (victim) could not be examined properly, hence reexamination is required. The examination-in-chief and the cross-examination of P.W.3 are on record. There has been lengthy and detail cross examination of the prosecutrix. All sorts of question were put to her. Therefore, it is not proper to plea that earlier she could not be cross-examined properly. 8. In view of this Court, the application of the applicant has rightly been rejected by both the courts below. No interference is presently called for by this Court in the matter. 9. Accordingly, the application under Section 482 Cr.P.C. is hereby dismissed.