HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous Second Bail No. 3297/2018
Dharmendra Suman S/o Sh. Lalchand, By Caste Mali, R/o
Kangniya, Thana Sangod, District Kota (Rajasthan), (Presently
Confined In Central Jail Kota.)
State Of Rajasthan Through P.p.
For Petitioner(s) : Mr.Ganesh Ram Meena
For Respondent(s) : Mr.Sudesh Saini,PP
HON’BLE MR. JUSTICE PANKAJ BHANDARI
Judgment / Order
1. The petitioner has moved this second bail application. The
first bail application was dismissed by the Court and petitioner was
permitted to move fresh bail application after recording of the
statement of the prosecutrix.
2. F.I.R. No.166/2017 was registered at Police Station Sangod,
District Kota for offence under Sections 450, 376 I.P.C. and
Section 3/4 POCSO Act, 2012.
3. From perusal of the order-sheets it is revealed that Special
Judge, POCSO Cases returned prosecutrix a minor victim of rape
twice for summoning the Medical Officer or Investigating Officer to
identify the prosecutrix and on third occasion her statement was
recorded after she was identified by the Medical Officer.
4. Learned Public Prosecutor has contended that in State vs.
(2 of 5) [CRLMB-3297/2018]
Hate Singh (S.B.Criminal Reference No.1/2015) decided on
16.9.2015 High Court has issued directions to all Courts that in
cases relating to Sections 376 and 354 IPC statement of
prosecutrix should be recorded by the Courts only after due
certification by the Medical Doctor concerned, who has examined
the prosecutrix, or the Investigating Officer concerned.
5. It is contended by learned Public Prosecutor that due to the
above directions given by the High Court in many cases statement
of prosecutrix is not being recorded as Doctors or Investigating
Officers are not always available on the date on which the
prosecutrix is summoned.
6. Returning of a rape victim and more particularly a child
victim has shocked the conscience of this Court hence this Court
deems it necessary to deal with the issue pertaining to recording
of statement of prosecutrix.
7. In the present case victim is a minor and the offence would,
therefore, fall under the Protection of Children from Sexual
Offences Act, 2012 (hereinafter to be referred as “the Act”). The
Protection of Children Sexual Offences Act, 2012 was enacted to
protect the children from offence of sexual assault, sexual
harassment and pornography and to provide for establishment of
Special Courts for trial of such offences and for matters connected
or incidental thereto.
8. Protection of Children from Sexual Offences Act, 2012 being
a special legislation dealing with offences of sexual assault, sexual
harassment and pornography, would prevail over other Acts.
Section 42-A of the Act makes a provision for this and the same
(3 of 5) [CRLMB-3297/2018]
reads as under:
“42A. Act not in derogation of any other law.-The
provision of this 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 this Act shall have overriding effect
on the provisions of any such law to the extent of the
9. Chapter-VIII of the Act deals with the procedure and powers
of Special Court and recording of evidence.
(a) Sub-section (4) of Section 33 of the Act provides for creating
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.
(b) Sub-section (5) of Section 33 of the Act specifically provides
that the Special Court shall ensure that the child is not called
repeatedly to testify in the Court.
10. Section 35 of the Act further makes a provision 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.
11. In State vs. Hate Singh (supra) Court was dealing with a
rape case where a lady impersonated herself as the victim and
turned hostile before the Court. In that case when the prosecutrix
approached the Court stating that she has not appeared before
the trial Court. The High Court ordered for re-trail. The Court in
order to stop impersonation directed the Courts below to call the
Medical Officer or the Investigating Officer concerned to identify
the prosecutrix before recording of her statement.
(4 of 5) [CRLMB-3297/2018]
12. Present case before the Court is a case under the Protection
of Children from Sexual Offences Act and since there is a specific
provision that statement of the child is to be recorded in presence
of her relatives. Chances of impersonation of a child victim is not
possible. Further returning a child for want of certification makes
redundant sub-section (5) of Section 33 which bars calling a child
repeatedly to testify in Court and Section 35 of the Act which
provides a time span for recording of statement of child. The
directions given in State Vs. Hate Singh (supra) cannot thus
be applied by the Courts below to return a child victim as that
would tantamount to violation of the Act. A direction, therefore,
needs to be given to the Court dealing with POCSO cases to
restrain them from returning a child for want of certification by
Medical Officer or Investigating Officer.
13. Though, this Court is not ceased with a case under Section
376 or 354 IPC but this Court feels that the directions given by the
Court in Hate Singh case (supra) to stop impersonation is
causing injustice to all the stake-holder. If a rape victim or a
victim of offence of outraging modesty is returned on account of
absence of the Medical Officer or Investigating Officer it causes
injustice to the victim as she is required to come again to testify
before the Court. It causes injustice to the accused as his trial is
protracted. Calling the Medical Officer only for purpose of
certification has an impact on the medical facilities and calling the
Investigating Officer has implication on the investigation front.
Further returning a witness may afford opportunity to the accused
to win over the witness
(5 of 5) [CRLMB-3297/2018]
14. This Court, thereofre, is of the view that it should be left to
the Public Prosecutor to satisfy himself that the prosecutrix
appearing before the Court to depose is a genuine witness. Public
Prosecutor may from his own source or on the basis of other
identification proof which may include Driving Licence, Passport,
Aadhar Card, Voter ID Card, PAN card etc. ensure that the
witness is genuine.
15. Returning a rape victim, a victim of outraging modesty and
more particularly a child is a blot on the judicial system which
cannot be permitted.
16. Copy of this order be sent to Registrar General for seeking
permission of Hon’ble Chief Justice for circulating copy of this
order to all the Sessions Judges of Rajasthan and judges dealing
with POCSO cases. Sessions Judges shall circulate copy of this
order to all the Judicial Officers under his jurisdiction for necessary
17. Reverting back to the present case, statement of prosecutrix
has been recorded on the third occasion. She has reiterated the
factum of rape being committed by the petitioner and merely
because there are minor contradictions, her statement cannot be
18. Hence, I am not inclined to allow the second bail application.
19. The second bail application is accordingly rejected.