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2016 DIGILAW 894 (MP)

Umesh Kumar v. State Of M. P.

2016-10-04

S.K.PALO

body2016
ORDER : Shri S. K. Dwivedi, learned counsel for the petitioner. Shri A. R. S. Chauhan, learned P.L for the respondent/State. Heard. 2. This revision under section 397 read with section 401 has been filed assailing the orders dated 27-7-2016 and 30-6-2016 passed by the Special Judge (Prevention of Atrocities), Panna in Special Case No. 21/2013 whereby the learned trial Court had ordered to adduce evidence to determine the age of the prosecutrix. 3. The facts necessary for disposal of this petition are that, the petitioner (Umesh Kumar Choudhary) along with one accused Phool Singh have been charged for offence under sections 363/34, 366-A/34, 376 of Indian Penal Code and under section 17 of the Protection of Children from Sexual Offences Act, 2012. Co-accused Phool Singh is a juvenile, therefore, charge-sheet has been filed against him in the Juvenile Court, Panna. 4. The petitioner contended that co-accused Phool Singh has been acquitted after completion of trial. It is stated that after framing of charge, the learned Special Court ordered to adduce evidence of the prosecution witnesses at the stage of final arguments. The learned trial Court on 27-6-2016 has re-opened the case stating that at the time of final arguments, it is pleaded by the learned counsel for the accused/petitioner that the prosecutrix is not a ‘child’. She is more than 18 years old. Without any such evidence on record, the petitioner prayed for acquittal. 5. The learned trial Court observing that the trial under the Special Act (i.e. Protection of Children from Sexual Offences, Act 2012) are different than the normal proceedings, after the completion of trial, this question has been raised that if the finding comes in favour of the accused then the whole proceeding would be vitiated on the ground that the trial commenced in a forum which has no jurisdiction. The learned trial Court, therefore, held that question can be raised about the age of the minor victim at any stage of trial. Hence, without any evidence on this point, no adjudication can be done on merits. Therefore, ordered to adduce evidence, exercising the powers under section 311 of Criminal Procedure Code to both the prosecution as well as the defence. 6. Hence, without any evidence on this point, no adjudication can be done on merits. Therefore, ordered to adduce evidence, exercising the powers under section 311 of Criminal Procedure Code to both the prosecution as well as the defence. 6. Subsequently, an application has been moved by D.P.O on 28-6-2016 under section 311, Criminal Procedure Code for calling the Principal of the Government Higher Secondary School, Krishnaganj, Panna and to prove the documents filed in this regard and to bring on record the Transfer Certificate of the prosecutrix and the admission at the time of entry into the school register. This application was opposed by the petitioner stating that it amounts to investigation under section 173(8) of Criminal Procedure Code whereas the trial commenced for three years and this amounts to fill up of lacking. 7. Learned trial Court vide order dated 1-7-2016 allowed the application stating that section 311, Criminal Procedure Code is a mandatory provision and the earlier order passed for both prosecution and defence can be asked to adduce evidence in this regard. The defence has not filed any application in this regard. So far as the delay is concerned, the defence has sought time to argue the matter on 28-5-2016, 1-6-2016 and 18-6-2016. The defence did not ask any question to the prosecution witnesses during their examination about the age of the prosecutrix when the charges have been amended. Neither the defence asked any question regarding the age of the prosecutrix to the medical officer, nor any question was put to the prosecturix in this regard. When the defence evidence was closed, such question has been raised by the defence and the defence has itself delayed the proceeding. Now it cannot raise such objection that the trial is being delayed. Learned trial Court allowed the application under section 311, Criminal Procedure Code and directed to adduce evidence. 8. Having heard the parties and perusing the record, it is found that the age of the minor victim is very vital for the trial. Section 34 of the Protection of Children from Sexual Offences Act, 2012 provides that :— “34. Procedure in case of commission of offence by child and determination of age by Special Court. 8. Having heard the parties and perusing the record, it is found that the age of the minor victim is very vital for the trial. Section 34 of the Protection of Children from Sexual Offences Act, 2012 provides that :— “34. Procedure in case of commission of offence by child and determination of age by Special Court. — (1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000). (2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination. (3) No order made be the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a person as determined by it under sub-section (2) was not the correct age of that person.” 9. In the light of the same, the Court was duty bound to determine the age of the child which shall be dealt with the provisions as provided under the Juvenile Justice (Care and Protection of Children) Act. 10. As regarding the provisions of 311 of Criminal Procedure Code, it would be appropriate to mention here that in order to enable the Court to find out the truth and render a just decision, the salutary provision of section 311 are enacted. The words used “at any stage” shows that even after both the parties have closed their cases, it is open to the Court to summon any person as a witness, if his or her evidence appears to the Court to be essential to the just decision of the case. The words “at any stage of the trial” indicates that once it is found that the evidence is essential for the just decision of the case, the witness can be recalled at any time before the pronouncement of the judgment. The time factor would not come in the way. In this regard reference can be profitably made to Raj Deo Sharma vs. State of Bihar, AIR 1999 SC 3524 . 11. The time factor would not come in the way. In this regard reference can be profitably made to Raj Deo Sharma vs. State of Bihar, AIR 1999 SC 3524 . 11. The object of the provision as a whole is to do justice, not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society. The Court examines evidence under the section 311 of Criminal Procedure Code neither to help the prosecution nor to help the accused. It is done neither to fill up any gaps in the prosecution evidence nor to give it any unfair advantage against the accused. 12. The fundamental proceeding to be seen is whether the Court thinks necessary in the facts and circumstances of the case to call witnesses for the disposal of the case. Section 34 of the Act, 2012 mandates the determination of the age of the minor victim child. Therefore, the order impugned cannot be said to be illegal or irregular or perverse. Therefore, the present petition is dismissed as devoid of merit.