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Dharmendra Suman vs State Of Rajasthan Through Pp on 12 April, 2018

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.)
—-Petitioner
Versus
State Of Rajasthan Through P.p.
—-Respondent

For Petitioner(s) : Mr.Ganesh Ram Meena
For Respondent(s) : Mr.Sudesh Saini,PP

HON’BLE MR. JUSTICE PANKAJ BHANDARI

Judgment / Order

12/04/2018
REPORTABLE

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
inconsistency.”

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

compliance.

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

discarded.

18. Hence, I am not inclined to allow the second bail application.

19. The second bail application is accordingly rejected.

(PANKAJ BHANDARI),J

Teekam/20

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