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2019 DIGILAW 2382 (ALL)

Vikas Singh v. State of U. P.

2019-10-19

VIKAS KUNVAR SRIVASTAV

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JUDGMENT : Vikas Kunvar Srivastav, J. The present revision is moved on behalf of the accused-applicants involved in Case Crime No. 287 of 2017, under Section 376-D Indian Penal Code, 1860 and Section 7/8 of Protection of Children from Sexual Offences Act, 2012 (hereinafter which shall be referred as 'POCSO' in short), Police Station PGI, District Lucknow. The revision is directed against the order of Addl. Sessions Judge/Special Judge POCSO Act, Lucknow dated 22.07.2019, made Annexure no. 1 to this revision. 2. Heard learned counsel for the revisionists, learned Additional Government Advocate for the State on the point of admission of the revision. Learned A.G.A. termed the order, impugned in this revision, in nature, 'interlocutory order'. He further argued, since revision is moved under Section 397/401 of the Code of Criminal Procedure, 1973, therefore there is a bar as to the admissibility contained under sub Section (2) of Section 397 Cr.P.C. 3. For easy reference Section 397 (2) is quoted below:. "(2) The powers of revision conferred by sub- section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding." 4. Learned A.G.A. argued that in view of the aforesaid Clause (2) of Section 397 Cr.P.C., there is a clear bar on the admissibility of the revision, being moved against an interlocutory order, hence must be dismissed at the very stage of admission. 5. Learned counsel for the revisionists, despite the contention of learned A.G.A. as to the bar on admissibility of revision, without addressing the issue, emphasized on the point that the impugned order is passed by the Special Court, in utter violation of the law, misconstruing the provisions of Section 38 of the POCSO Act which occasioned a serious illegality, causing grave injustice to the accused-revisionist, hence the revision lies and impugned order is liable to be interfered exercising power of revision by the Court. 6. In the light of arguments, examined the impugned order alongwith the other materials, placed on record, whether it is passed misconstruing the provisions of Section 38 of the POCSO Act read with the relevant provision of Indian Evidence Act, 1872, applicable to recording of the statement of a victim of sexual offences, during trial. 7. 6. In the light of arguments, examined the impugned order alongwith the other materials, placed on record, whether it is passed misconstruing the provisions of Section 38 of the POCSO Act read with the relevant provision of Indian Evidence Act, 1872, applicable to recording of the statement of a victim of sexual offences, during trial. 7. Before discussing the arguments, raised by learned counsel for the revisionists, it would be helpful in judging the legality of the order to look into the facts of the incident, as well as proceeding of the trial before Special court. 8. The First Information Report, briefly stating, discloses that the victim, 5 years' old girl-child, was being sexually abused in the premises of her school "Allen House Public School," Vrindavan Yojna, Lucknow. She, in the age of 4 years, got admission in the said school. On 10.05.2017, the informant lodged First Information Report when she (the mother) noticed that intermittently her daughter suffers sickness with complaint of burning and difficulty while urinating. At the relevant time of lodging the FIR, the child was of 5 years in age. She noticed further that private part of her daughter has some swelling. When she asked the daughter, her reply disclosed that in her school a bhaiya of elder age, who had magic tricks and stories of fairies, on the pretext of entertaining her with magic and stories, used to insert fingers and some other things in her private part. She further told that there were several boys elder in age, students of Class-10, who used to be dressed like her father, also taken her in a room in the school premises where an aunty caught her hold from back and then those elder boys inserted finger and some other things in her private part. Several other like allegations made in the FIR were investigated. The accused-revisionists came into picture as one of the culprits. Naturally, a case alongwith relevant Sections of the Indian Penal Code and Section 3/4 of the 'Prevention of Children from Sexual Offences Act, 2012' were slapped against the accused-revisionist. Several other like allegations made in the FIR were investigated. The accused-revisionists came into picture as one of the culprits. Naturally, a case alongwith relevant Sections of the Indian Penal Code and Section 3/4 of the 'Prevention of Children from Sexual Offences Act, 2012' were slapped against the accused-revisionist. During trial, by Special Judge, in the course of recording evidence, the victim child who at the relevant time grew old of 7 years, when subjected to question in cross examination as to the incident how happened with her, the court and the parents felt that she is unable to communicate her answer due to lisping tongue as well as to understand the question in their true sense and answer them. Consequent thereupon, on the application of the parents, learned court exercised it's jurisdiction under Section 38 of the POCSO Act and ordered to provide the victim an 'interpreter' on the cost of the informant. 9. This order, providing the help of interpretor to the aforesaid victim, is challenged in this revision on the ground that 'interpretor' can only be provided to a physically or mentally disabled person and not to a person who is free from such ailments or disability. Submission of learned counsel is that learned Special Judge, going beyond the power given to him under Section 38 of the POCSO Act, has provided the help of interpreter to the victim during cross-examination, which is illegal. 10. The vehemence of the argument is only upon the said fact. Learned counsel has avoided to argue on the point that whether the impugned order, which is passed in the proceeding so as to make furtherance of the proceeding, can be challenged in the revision despite a bar under Section 397(2) of the Cr.P.C. 11. In the wake of insisting argument of learned counsel for the revisionist, the point raised as to the illegality of the order, is taken first to consider, whether the learned court exercised its jurisdiction beyond the power vested in it under the POCSO Act and therefore the said order is illegal. 12. For easy reference and convenience, Section 38 of the POCSO Act is quoted hereunder: "(1) Wherever necessary, the Court may take the assistance of a translator or interpreter having such qualifications, experience and on payment of such fees as may be prescribed, while recording the evidence of the child. 12. For easy reference and convenience, Section 38 of the POCSO Act is quoted hereunder: "(1) Wherever necessary, the Court may take the assistance of a translator or interpreter having such qualifications, experience and on payment of such fees as may be prescribed, while recording the evidence of the child. (2) If a child has a mental or physical disability, the Special Court may take 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 and on payment of such fees as may be prescribed to record the evidence of the child." 13. Obviously the aforesaid provision of Section 38 of POCSO Act is having two parts. The vehemence of the argument by learned counsel for the revisionists is upon sub Section (2) of Section 38 of the POCSO Act. Reading over Clause 2 of Section 38 of the Act, learned counsel emphasized that unless the girl suffers from any physical or mental disability, the 'interpreter' could not be given to her. Arguing on the point as to over exercise of the jurisdiction, learned counsel ignored sub Section (1) of Section 38 of the POCSO Act where the opening words used are "Wherever necessary", the Court may take the assistance of a translator or interpreter having such qualifications, experience and on payment of such fees as may be prescribed, while recording the evidence of the child". The said words 'wherever necessary' emanate the Court to exercise it's discretion in appropriate case. 14. Under the POCSO Act, the 'child' is defined as a person below the age of 18 years. The term therefore includes child being newly born or of tender age from months to years below the age of 18 years. A child having the age of adolescence or a child due to lack of sufficient vocabulary of a particular language or having no acquaintance with the dialect of the language being used by the speaker may be unable to speak, understand or communicate in that particular language. The child may or may not know the words used by other person making conversation with him/her. Even the nature, true meaning/sense of conversation being made to him/her by another person would not be assessable by the child. The child may or may not know the words used by other person making conversation with him/her. Even the nature, true meaning/sense of conversation being made to him/her by another person would not be assessable by the child. "To communicate" with any person who is talking with him/her in a particular language, even if known by reason of immaturity of mind would not be understandable to a child. Naturally, he or she would feel 'unable to communicate' with the speaker. These all and other like things make a child 'unable to communicate'. 15. In the present case the girl being a child of tender age (7 years) when subjected to examination in Court for recording her evidence as victim, the questions made to her by some one else (in the present case the defence counsel), to whom she had earlier never heard might have felt herself "unable to understand" the questions. Even if understandable to her, she might have felt 'inability to communicate' properly and correctly, by reason of lack of vocabulary and lisping tongue. The trouble of the child when noticed by the parents and Court, it made them apprehensive of recording of incorrect evidence of the child. In such circumstance, it always would be necessary for the Court to endevour the witness to make him/her expressive of thoughts running in the mind while trying to answer the question in true sense and aspect of the fact. 16. The opening words of Section 38(1) "whenever necessary" signify the discretion of the court to be exercised in any such circumstance while recording the evidence of a child. The court on the application of the parents or on its own observation may gather from the circumstance which necessitate to provide a translator or the interpreter as the case may be. The difference between 'Unable' and 'Disable' 17. Considering the argument of learned counsel as to the word used in Section 38(2) of the Act to circumspect the necessity for providing help of translator/interpreter to a child while recording the evidence in the case of 'disability' of a child (mental or physical disability), it would not be out of relevance to mention that sub Section (1) of Section 38 does not use the word 'disable'. There is a lot of difference between the words 'unable' and 'disable'. There is a lot of difference between the words 'unable' and 'disable'. In the present context, it would be necessary to see that both the words have different meaning. 'Unable' literally means a person who is not able while 'disable' means a person incapable of using body part by the action. It clearly means that the 'disability' is quite a distinct thing from 'inability'. One can take example of a child (person) who is dumb/deaf, mentally sick or a person suffering from any other such incapacity to hear, speak or communicate is called severe form of "disability". Section 38(2) of the POCSO Act applies to such persons, whereas Section 38(1) of the POCSO Act applies to a child who is not disable but 'unable to communicate'. The words pronounced by a child varies according to her age. In the present case the victim at the relevant time of recording of evidence in Court is 7 years old with lisping tongue, naturally she would be unable to communicate or any communication made to her by other person, would be much difficult than that made to a well grown child reaching to age of 18 years. Section 38(1) of POCSO Act in consonance with proviso to amended provision of Section 119 Evidence Act 18. Further, the POCSO Act came into force on 03.02.2013. Section 38 of the Act when came into operation, the provision of Evidence Act, 1872 was also amended. Before the amendment, Section 119 of the Evidence Act was as under: "[Dumb witnesses- a witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court. Evidence so given shall be deemed to be oral evidence."]" 19. Section 119 in The Indian Evidence Act, 1872 as amended vide amending Act no. 13 of 2013 w.e.f. 03.02.2013 runs as under: [119. Witness unable to communicate verbally-A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court. 13 of 2013 w.e.f. 03.02.2013 runs as under: [119. Witness unable to communicate verbally-A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court. Evidence so given shall be deemed to be oral evidence: provided that if the witness is unable to communicate verbally, the court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be videographed. 20. On perusal of the amended and unamended Section of the Evidence Act, 1872, it can clearly be seen that after 03.02.2013 when the amended Act came into force, Section 38(1) of POCSO Act in it's spirit and effect seems to have taken place in the proviso of amended provision of Section 119. It is note worthy that amended Section 119 of the Evidence Act in it's proviso, uses the words 'unable to communicate verbally', the words 'unable to communicate' are in consonance with Section 38 (1) of the POCSO Act. 21. As such, on the basis of above discussion, the argument of learned counsel for the revisionists that the court below while passing the impugned order went beyond the jurisdiction vested in it and wrongly exercised his power to appoint interpreter for victim-child, aged about 7 years, during cross-examination, is incorrect, baseless and suffers from misconception as to the provisions of Evidence Act and the relevant Section 38 of the POCSO Act. In my view courts are made competent under Section 38(1) of POCSO Act read with proviso appended to Section 119 of the Evidence Act (as amended vide Act No. 13 of 2013, w.e.f. 03.02.2013) to provide help of translator or interpreter as the case may be in appropriate cases, to a victim child who is unable to communicate verbally, while recording evidence. 22. Coming on the second point as to the bar of Section 397 (2) of the Cr.P.C., undoubtedly on bare reading of the impugned order providing the interpreter, to the child subjected to cross-examination by a well skilled advocate in defence, is not a final order. Nothing is doing, when this order exists, to culminate the proceeding or finally decide the right of the accused, adversely affecting his defence. Nothing is doing, when this order exists, to culminate the proceeding or finally decide the right of the accused, adversely affecting his defence. In deciding whether an order challenged is interlocutory or not so far as Section 397(2) Cr.P.C. is concerned, the sole test is not whether such order was passed during the interim stage, if the order, under challenge, culminates the criminal proceeding as a whole or finally decided the right and liability of the parties then the order passed is not interlocutory. This is laid down by Hon'ble Apex Court in the case of M/s Bhaskar Industries Limited Vs. Bhiwani Denim and Apparels Ltd. and Others, AIR 2001 SC 3625 and in the case of K.K. Patel and others Vs. State of Gujrat, AIR 2000 SC 3346 . 23. The impugned order is purely interlocutory which cannot be amenable in revision under Section 397 Cr.P.C. and suffers from the bar under Sub-Section (2) of Section 397 Cr.P.C. 24. On the above two scores, I find that the revision is not admissible and, therefore, the same is dismissed at the very threshold.