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Dipesh Ahirwar vs The State Of M.P. on 18 March, 2024

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Madhya Pradesh High Court

Dipesh Ahirwar vs The State Of M.P. on 18 March, 2024

1
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
BEFORE

HON’BLE SHRI JUSTICE RAJ MOHAN SINGH

ON THE 18th OF MARCH, 2024

MISC. CRIMINAL CASE NO.41 OF 2024

BETWEEN:-

DIPESH AHIRWAR S/O SHRI UMRAO AHIRWAR, AGED
ABOUT 19 YEARS, OCCUPATION: LABOUR R/O VILLAGE
PAMAKHEDI TEHSIL AND DISTRICT SAGAR, POLICE
STATION SANODHA (MADHYA PRADESH)

…APPLICANT

(BY SHRI RAKESH KESHARWANI – ADVOCATE)

AND

1. THE STATE OF M.P. THROUGH P.S. SANODHA DIST.
SAGAR (MADHYA PRADESH)

2. VICTIM-A

RESPONDENTS

(BY SHRI MANU V. JOHN – PANEL LAWYER)

This petition came up for hearing on 14.03.2024 and the order was kept
reserved.

ORDER

Signature Not Verified
Signed by: BHARTI GADGE
Signing time: 3/18/2024
12:43:47 PM
2

The petitioner has preferred this petition against the

order dated 28.04.2023 passed by the Special Session Judge,

(POCSO), District Sagar, M.P. in Session Trial No.114/2022,

rejecting the application under Section 311 Cr.P.C. filed by the

accused/petitioner.

2. Learned counsel for the petitioner submitted that the

aforesaid Session Trial No. 114/2022 is pending for the offences

under Sections 376, 342, 506 IPC read with section 3 and 4 of the

POCSO Act, 2012 (hereinafter referred to as “POCSO Act”) before

the Special Session Judge (POCSO), District Sagar in connection

with Crime No.269/2022. During pendency of the trial, the

applicant has preferred an application under Section 311 Cr.P.C. for

further cross-examination of prosecutrix, whose further cross-

examination is necessary for just decision of the case. The

prosecutrix was examined on 16.01.2023 and factum of

contradictions in the statements of the prosecutrix viz-a-viz other

material could not be put to her by the previous counsel, who was a

Legal Aid counsel. The trial Court while rejecting the aforesaid

Signature Not Verified
Signed by: BHARTI GADGE
Signing time: 3/18/2024
12:43:47 PM
3
application has noticed the following incriminating facts appearing

on record;

(a) Under the POCSO Act, the victim cannot be

victimized by repeatedly calling her to appear in

the Court.

(b) The cross-examination of the victim by the

counsel for the accused was completed after

granting many opportunities.

(c) The charge-sheet was filed on 13.09.2022 and

on presentation of the charge-sheet, Shri D.D.

Ahirwar, Shri O.S. Mishra and Smt. Sangeeta

Choubey, Advocates filed their memo on behalf of

the accused. Thereafter, the aforesaid advocates

sought adjournment to address arguments on

charges.

(d) On 12.10.2022, the aforesaid advocates filed

their Power of Attorneys and the case was

adjourned for 17.10.2022. On 17.10.2022, the

arguments were heard on the charges under

Signature Not Verified
Signed by: BHARTI GADGE
Signing time: 3/18/2024
12:43:47 PM
4
Sections 376(1), 342, 506 (Part-II)
IPC and section

3/4 of the POCSO Act, and the case was adjourned

for 04.11.2022, but on 04.11.2022, when the

victim and her parents were present in the Court

and the Peon of the Court contacted the learned

counsel for the accused, then they refused to

pursue the case of the accused.

(e) Since the accused was in judicial custody,

therefore, he was asked as to whether he would

seek help of Legal Aid counsel or not. On his

concurrence, the case was forwarded for

appointment of the Legal Aid counsel and the

witnesses were bound down for the next date.

(f) On 24.11.2022, Shri Ramakant Mishra,

Advocate was appointed as the Legal Aid counsel,

but on that day, the injured witness/prosecutrix

and her parents could not appear and next was

fixed as 19.12.2022.

Signature Not Verified
Signed by: BHARTI GADGE
Signing time: 3/18/2024
12:43:47 PM
5

(g) On 19.12.2022, the victim and her parents

appeared and Shri Ramakant Mishra, Advocate

made a request for adjournment as he could not

obtain copy of the challan and could not contact

with the family members of the accused and the

case was adjourned for 16.01.2023 and the present

witnesses were bound down for the said date.

(h) On 16.01.2023, the minor victim and her

mother came present. Shri Ramakant Mishra

Advocate cross-examined the witnesses i.e. minor

victim and her mother. Thereafter, the case was

adjourned for remaining evidence for 06.02.2023.

(i) On 06.02.2023, father of the minor victim and

Headmaster of the school appeared, but the Legal

Aid counsel did not pursue the case of the accused

and the appointment of the Legal Aid counsel was

cancelled. On that day, the accused did not bring

any advocate on his behalf, rather he stated that

the advocate, whom he wants to pursue his case is

Signature Not Verified
Signed by: BHARTI GADGE
Signing time: 3/18/2024
12:43:47 PM
6
not present and he would bring his advocate on the

next date of hearing. On this, the accused was

directed to bring his counsel on the next date of

hearing and the father of the victim and

Headmaster of the school were bound down for

27.02.2023.

(j) On the date fixed, the witnesses did not appear

and Smt. Sangeeta Choubey, Advocate filed her

Power of Attorney on behalf of the accused.

Thereafter, on the date fixed, Shri O.S. Mishra,

Advocate on behalf of the accused did cross-

examination of the Headmaster of the school.

3. A perusal of the aforesaid facts as noticed by the trial

Court would indicate that the victim has appeared in the Court on

many occasions and the case was adjourned at the instance of the

accused repeatedly on one pretext or the other. Number of advocates

have made their appearances on behalf of the accused, but cross-

examinations of the witnesses were deferred for one reason or the

other. It is true that the cross-examination of material witness is

Signature Not Verified
Signed by: BHARTI GADGE
Signing time: 3/18/2024
12:43:47 PM
7
necessary for just decision of the case and the Hon’ble Apex Court

in Rajaram Prasad Yadav Vs. State of Bihar and another in Cri.

No.830/2013 SLP Cri.2400/2011, decided on 04.07.2013 has laid

down certain principles, which are required to be kept in mind,

while deciding the application under Section 311 Cr.P.C.

4. One of the principles as enunciated by the Hon’ble

Apex Court is that the exercise of the said power cannot be dubbed

as filling a lacuna in the prosecution case, unless the facts and

circumstances of the case make it apparent that the exercise of

power by the Court would result in causing serious prejudice to the

accused, resulting in miscarriage of justice. The discretionary power

has to be exercised judiciously and not in an arbitrary manner. The

Court must satisfy itself that it was in every respect essential to

examine such a witness or to recall the witness for further cross-

examination in order to arrive at a just decision. The object of

Section 311 Cr.P.C. simultaneously imposes a duty on the Court to

determine the truth and to render a just decision.

5. In the cases under the POCSO Act, the Hon’ble Apex

Court in Eera Vs. State (NCT of Delhi), (2017) 15 SCC 133, has

Signature Not Verified
Signed by: BHARTI GADGE
Signing time: 3/18/2024
12:43:47 PM
8
discussed “objects and reasons” and the preamble of the
POCSO

Act. The very purpose of bringing this legislation is to protect the

children from the sexual assault, harassment and exploitation, and to

secure the best interest of the child. It is manifest that it recognizes

the necessity of the right to privacy and confidentiality of a child to

be protected and respected by every person by all means and

through all stages of a judicial process involving the child. Best

interest and well-being are regarded as being of paramount

importance at every stage to ensure the healthy physical, emotional,

intellectual and social development of the child. There is also a

stipulation that sexual exploitation and sexual abuse are heinous

offences and need to be effectively addressed. Tender age of the

children is not to be abused, rather it is to be protected against

exploitation. The Special Courts are required to try the offences

under POCSO Act for ensuring a speedy trial which is one of the

fundamental objectives of the Act.

6. Chapter VIII of the Act deals with the procedure and

powers of these Special Courts and the procedure for recording

evidence of the child victim. Section 33 falling under Chapter VIII

Signature Not Verified
Signed by: BHARTI GADGE
Signing time: 3/18/2024
12:43:47 PM
9
provides for various safeguards at the trial stage and ensures that

various manifold interests of the child are protected.

7. Section 35 of the Act provides for recording of

evidence of the child within a period of thirty days by the Special

Court after taking cognizance of the offence. The reasons for delay,

if any, shall also be recorded by the Special Court and the Special

Court shall complete the trial, as far as possible, within a period of

one year from the date of taking cognizance of the offence.

8. Section 36 of the Act casts a duty on the Special Court

to ensure that the child is not exposed in any way to the accused at

the time of recording of evidence, while at the same time ensuring

that the accused is in a position to hear the statement of the child

and communicate with his advocate.

9. The Hon’ble Apex Court in Alakh Alok Srivastava Vs.

Union of India and others, (2018) 17 SCC 291, has issued the

following directions:

“25.1. The High Courts shall ensure that the
cases registered under the
POCSO Act are tried
and disposed of by the Special Courts and the
Presiding Officers of the said Courts are

Signature Not Verified
Signed by: BHARTI GADGE
Signing time: 3/18/2024
12:43:47 PM
10
sensitized in the matters of child protection and
psychological response.

25.2. The Special Courts, as conceived, be
established, if not already done, and be assigned
the responsibility to deal with the cases under the
POCSO Act.

25.3. The instructions should be issued to the
Special Courts to fact track the cases by not
granting unnecessary adjournments and
following the procedure
laid down in the POCSO
Act and thus complete the trial in a time-bound
manner or within a specific time-frame under the
Act.”

10. If the facts recorded in the preceding paragraphs are

tested at the threshold of the aforesaid directions issued by the

Hon’ble Apex Court, then it has to be seen that the trial under

POCSO Act has to be considered on distinct platform. The child

victim cannot be exposed to the accused repeatedly. The repeated

adjournments at the instance of the accused are indicative of the fact

that the accused by engaging different advocates on different

occasions has intended to victimized, harassed and exposed the

minor victim.

Signature Not Verified
Signed by: BHARTI GADGE
Signing time: 3/18/2024
12:43:47 PM
11

11. For the reasons recorded herein above, this Court

deems it appropriate not to grant any indulgence in this petition.

Consequently, this petition is dismissed. Normal consequences to

follow.

(Raj Mohan Singh)
Judge

(18/03/2024)

b

Signature Not Verified
Signed by: BHARTI GADGE
Signing time: 3/18/2024
12:43:47 PM

1 thought on “Dipesh Ahirwar vs The State Of M.P. on 18 March, 2024

  1. में दीपेश आरोपी ,
    कानून सबके लिए एक समान है।
    में मानता हु की लड़की की रक्षा करो ,लेकिन लडको को भी सोचो।
    इस लड़की ने मुझे अपने चक्कर में फसाया था स्कूल में
    लड़की ने मुझे मेरे दोस्त के घर बुलाया था और लड़की के घर बालो को जब इस बात का पता लगा तो मेरी FIR कर दी थी
    लड़की और मेरी दोस्ती थी मेरे पास बहुत से सबूत है जो में कोर्ट में बताना चाहता था लेकिन मुझे मंजूरी नहीं मिली ये लड़की की रक्षा है
    चाहे लड़के को 20 साल की सजा हो जाए क्या फर्क पड़ता है हम लड़के है न
    वीडियो रिकॉर्ड ,कॉल लिस्ट,व्हाट्सअप चैट,इस्ताग्राम चैट,स्क्रीन शोर्ट,जैसी बहुत से सबूत है मेरे पास जिस को भी में आरोपी लगता हु मुझे मैसेज कर के देख सकता है सभी सबूत
    कुछ टाइम बाद मुझे 20 साल की सजा होने बली है
    क्या फर्क पड़ता है हम लड़के है न
    अगर में सारे सबूत शोसाल मीडिया पार डाल दूं तो मुझे पुलिस पकड़ लेगी पता है kyu लड़की के सम्मान को ठेस पहुंचा के आरोप में
    कोई बात नही kyu की में एक लड़का हु

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