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Punam Thakur vs State Of Haryana And Anr on 6 December, 2017

Crl. Revision No. 3462 of 2017 1

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH

Crl. Revision No. 3462 of 2017 (OM)
Date of decision: December 6, 2017

Punam Thakur
…Petitioner
Versus
The State of Haryana and another
…Respondents

CORAM:- HON’BLE MS. JUSTICE JAISHREE THAKUR

Present: Mr. R.S. Rai, Senior Advocate with
Mr. R.D. Gupta, Advocate, for
for the petitioner.

Mr. P.P. Chahar, DAG, Haryana.

Mr. Sunieta Ojha, Advocate,
for respondent No.2.

JAISHREE THAKUR, J.

1. This is a revision petition that has been filed seeking to

challenge the order dated 14.9.2017 passed by the learned trial court,

Gurugram, framing of charges against the petitioner.

2. The facts of the case need to be noted to appreciate the

controversy arising herein.

3. The petitioner’s son, namely, Abhishek Anand, got married to

the complainant/respondent No.2 on 16.4.2006 and out of this wedlock three

children were born, the eldest being born 22.8.2010 and twins were born on

1.11.2012. Respondent No.2 filed a complaint on 28.6.2017 alleging that the

petitioner’s husband, namely, Shailzanand Thakur had sexually assaulted her

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minor daughter during the children’s stay in Jamshedpur, when the three

children had gone there for winter vacations from 28.12.2016 to 5.1.2017. In

the complaint dated 28.6.2017, it was alleged that the petitioner herein

(paternal grandmother of the minor victim) abetted in the commission of

crime. Immediately thereafter, an FIR No. 204 of 2017 under Sections 6 and

10 of the Prevention of Children from Sexual Offences Act (hereinafter

referred to as ‘the POCSO Act’) and Section 506 of the Indian Penal Code

(for short ‘the IPC’) came to be registered against the petitioner and her

husband. Statement of the victim under Section 164 of the Code of Criminal

Procedure (for short ‘the Code’) was recorded on 28.6.2017 by the

Magistrate. On the same date, statement of the victim was also recorded by

the Child Welfare Committee as well as statement of the victim’s father.

The Investigating Agency recorded the statements of the victim, as well as

of her mother the complainant, under Section 161 of the Code on 6.7.2017

and on conclusion of the investigation, a charge sheet was filed against the

petitioner and her husband–Shailzanand Thakur. Thereafter, the trial court

framed charges by the impugned order dated 14.9.2017, which is under

challenge in this revision by Punam Thakur the grandmother of the minor

victim.

4. Mr. R.S. Rai, learned Senior Advocate, assisted by Mr. R.D.

Gupta, Advocate, appearing on behalf of the petitioner impugns the said

charge sheet, by arguing that the trial court has failed to consider material

contradictions and the improvements made. It is argued that the statement of

the prosecutrix recorded before the Chief Judicial Magistrate as well as the

Child Welfare Committee on 28.6.2017, does not reflect any allegations

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directly or indirectly against the petitioner and any allegations made in the

statement so recorded is entirely against her grandfather–Shailzanand

Thakur. It is only on 6.7.2017, the young prosecutrix in her statement under

Section 161 of the Code made a reference of the petitioner herein, in which

statement she stated “…I had told my dadi about these actions and my dadi

ma did not scold my dadu and she did not tell it to my mother father. When

my dadi ma did not tell dadu about the actions that were done with me then

I told my mother father about what was done with me by dadu…” Learned

Senior Advocate also argues that the impugned order framing charges would

not be sustainable as the trial Court has proceeded on the premise that the

petitioner Punam Thakur was present in the room or in the house where the

grandfather repeatedly committed acts of sexual assault upon the victim. It is

also contended that in view of the allegations in the charge-sheet, no

ingredient of abetment is made out qua the petitioner, as the petitioner

neither instigated nor intentionally aided the accused–Shailzanand Thakur

to commit the alleged offence. It is also argued that a reading of the

statement of the prosecutrix would reflect that the offence, if any, has taken

place in Jamshedpur when the three children had visited their grandparents

during winter break and, therefore, territorial jurisdiction, if any, to try the

offence was with the Courts at Jamshedpur and the Gurugram courts would

not have such territorial jurisdiction. Moreover, it is argued that the

application, being Crl. Misc. No. 37191 of 2017, filed in the revision, during

the pendency of the petition, seeking to place on record the true transcript of

the video recorded by the complainant on 8.6.2017 cannot be relied on, as

there is no compliance of the provisions of Section 65-B of the Indian

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Evidence Act. It is also contended that all allegations in the FIR are false

and fabricated since the complainant (mother of the prosecutrix) failed to get

the victim’s MLR conducted, despite the advice given by the doctor.

5. Per contra, learned advocates Mr. P.P. Chahar DAG Haryana

appearing on behalf of the State, and Ms. Suneita Ojha appearing for the

complainant submits that a reading of the FIR would disclose that offences

punishable under Sections 6, 10 and 16 of the POCSO Act and Section 506

of the IPC are made. It is contended that the petitioner–Punam Thakur is

specifically named in the FIR and the role attributed to her for abetment of

offence is clearly made out. The FIR clearly mentions that the petitioner

herein allowed the child of about 4 years old to sleep in the room alone with

the accused grandfather, was also (present in the room) when the child was

being sexually abused and traumatized the minor in so far as not allowing

the child to speak to her mother when the minor asked to speak to her. It is

argued that a video has been made on the phone which shows the child

telling her mother, that the petitioner–Punam Thakur was present in the

room when the grandfather–Shailzanand Thakur was abusing her. It is

argued that the FIR is based on the sexual abuse described by the child to

her mother recorded on the phone by the complainant herein. The original

video on the mobile phone was copied to a pen drive by the police itself

during the course of the investigation and the said pen drive forms a part of

the charge sheet and, therefore, it became relevant material to be looked at,

at the time of framing of the charge sheet. It is further argued that in the FIR,

it has categorically been stated that the accused grandfather had touched the

prosecutrix inappropriately while visiting their Gurugram residence, and the

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incidence in the FIR complained of pertained to the incidence at Jamshedpur

is a continuing offence and, therefore, the courts at Gurugram would have

territorial jurisdiction to try the instant case. It is further submitted that the

trial court, after hearing the learned advocate for the parties and going

through the evidence available on record, charge sheeted the petitioner and

her husband for the aforesaid offences and no illegality or irregularity has

been committed by the trial court, while framing the charges and revisional

jurisdiction cannot be exercised lightly and that it can be exercised only in

exceptional cases where the interest of public justice requires interference

for correction of manifest illegality or prevention of gross miscarriage of

justice, which is not the case here.

6. I have heard learned advocates for the parties and with their

assistance have gone through the pleadings in the revision and have also

perused the police file with the help of the advocate appearing on behalf of

respondent State. The allegations in the FIR are too sordid to detail, but

pertain to sexual abuse upon a minor victim. Charges have been framed

against the grandmother of the minor under Section 506 IPC and Sections 6,

10, 16 of POCSO Act 2012 which has led to the filing of the instant revision

petition.

7. In view of the submissions and pleadings of the parties, the

questions those arise for determination in this case are:-

(i) Whether the courts at Gurugram would have the

territorial jurisdiction to try the instant case?

(ii) Whether the pen drive and the transcript attached

with the charge sheet can be looked into without

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certification in terms of Section 65-B of the Evidence

Act at the time of framing of charge?

(iii) Whether there has been abetment attributable to the

petitioner, as alleged in the FIR ?

(iv) Whether the charges framed under Section 506 IPC

and Sections 6, 10 and 16 of the POCSO Act would

be sustainable qua the petitioner?

I Whether the courts at Gurugram would have the territorial
jurisdiction to try the instant case?

8. Sections 177 and 178 of the Code of Criminal Procedure

provides that every offence that is committed in India shall ordinarily be

inquired and tried by the court within whose local limits, the offence is

committed. The law contained under the Code further provides that in case

where an offence consists of several acts that are done in different local

areas, then it may be inquired and tried by the court that is having

jurisdiction over any of these local areas.

Sections 177 and 178 of Cr.P.C are reproduced herein:

“177. Ordinary place of inquiry and trial. Every offence shall
ordinarily be inquired into and tried by a Court within whose
local jurisdiction it was committed.

178. Place of inquiry or trial. (a) When it is uncertain in which
of several local areas an offence was committed, or

(b) where an offence is committed, partly in one local area and
partly in another, or

(c) where an offence, is a continuing one, and continues to be
committed in more local areas than one, or

(d) where it consists of several acts done in different local
areas, it may be inquired into or tried by a Court having

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jurisdiction over any of such local areas.”

9. A detailed charge sheet dated 18.7.2017 came to be registered

against the petitioner and her husband, namely, Shailzanand Thakur. In the

said charge sheet it has been specifically mentioned that in March, 2016, it

was noticed that the accused–Shailzanand Thakur was holding the minor

child and was giving her a kiss on her lips, holding the minor between his

legs and was making the minor child uncomfortable. This issue was raised

by the complainant to her husband, who asked her to ignore it, saying that

the grandfather was very fond of the grand children. The second incident

occurred in Jamshedpur when the accused persons had exclusive custody of

the minor children from 28.12.2016 to 5.1.2017 and third incident

mentioned in the FIR is of the month of May, 2017 during wedding

celebration in Siliguri. The first offence is stated to have taken place at

Gurugram. Even though no complaint was made of at that time and the said

offence was not as horrific as the one complained of at Jamshedpur, it would

be sufficient for the alleged offence at Gurugram to be part of the continuing

offence of sexual abuse upon the minor victim to confer jurisdiction on the

courts at Gurugram. This Court draws strength for its conclusion from the

judgment rendered in Asit Bhattacharjee Versus M/s Hanuman Prasad

Ojha and others 2007 (3) R.C.R. (Criminal) 177, wherein it has been held

that even if a part of the offence was committed by an accused in a particular

area, that court would have jurisdiction to entertain the complaint. In other

words, when an offence is a continuing offence and is committed in more

than one local area , it may be tried by any of those courts having territorial

jurisdiction. In view of the above, since the first offence is stated to have

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been committed at Gurugram and thereafter at Jamshedpur, the courts at

Gurugram shall have the territorial jurisdiction to try the case.

II Whether the pen drive and the transcript attached with the
charge sheet can be looked into without certification in
terms of Section 65-B of the Evidence Act at the time of
framing of charge?

10 . Learned Senior Advocate appearing on behalf of the petitioner

has raised an argument that the pen drive that forms part of the charge sheet

cannot be relied upon by the trial court, while framing charges of abetment

against the petitioner under Section 16 of the POCSO Act. It is vehemently

argued that there has been non-compliance of Section 65-B of the Evidence

Act in so far as there has been no certification as mandated by law. It is

argued that notwithstanding anything contained in the Evidence Act, any

information contained in an electronic record, which is printed on a paper,

stored, recorded or copied in optical or magnetic media shall be deemed to

be a document, only if the conditions mentioned in sub-section Section (2)

of Section 65 are satisfied.

11. In the present case, the mobile phone on which a video is

recorded by the mother of the minor victim, in which the minor prosecutrix

had stated and given details of the offence committed upon her, was handed

over to the police. The same was downloaded on a pen drive which became

a part of the challan presented under Section 173 (2) of the Code. It is

argued that such video/pen drive which forms the basis of the FIR is

inadmissible in evidence on account of the fact that provisions of Section

65-B have not been complied with. In this regard, reliance has been placed

upon the judgment rendered in Anvar P.V. Versus P.K. Basheer and

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others 2014 (4) R.C.R. (Civil) 504, in which it was held:-

“13. Any documentary evidence by way of an electronic record

under the Evidence Act, in view of Sections 59 and 65A, can be

proved only in accordance with the procedure prescribed under

Section 65B. Section 65B deals with the admissibility of the

electronic record. The purpose of these provisions is to sanctify

secondary evidence in electronic form, generated by a

computer. It may be noted that the Section starts with a non

obstante clause. Thus, notwithstanding anything contained in

the Evidence Act, any information contained in an electronic

record which is printed on a paper, stored, recorded or copied

in optical or magnetic media produced by a computer shall be

deemed to be a document only if the conditions mentioned

under sub-Section (2) are satisfied, without further proof or

production of the original. The very admissibility of such a

document, i.e., electronic record which is called as computer

output, depends on the satisfaction of the four conditions under

Section 65B(2). Following are the specified conditions under

Section 65B(2) of the Evidence Act:

(i) The electronic record containing the information

should have been produced by the computer during the

period over which the same was regularly used to store

or process information for the purpose of any activity

regularly carried on over that period by the person

having lawful control over the use of that computer;

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(ii) The information of the kind contained in electronic

record or of the kind from which the information is

derived was regularly fed into the computer in the

ordinary course of the said activity;

(iii) During the material part of the said period, the

computer was operating properly and that even if it was

not operating properly for some time, the break or breaks

had not affected either the record or the accuracy of its

contents; and

(iv) The information contained in the record should be a

reproduction or derivation from the information fed into

the computer in the ordinary course of the said activity.

xx xx xx
xx xx xx

15. It is further clarified that the person need only to state in

the certificate that the same is to the best of his knowledge and

belief. Most importantly, such a certificate must accompany the

electronic record like computer printout, Compact Disc (CD),

Video Compact Disc (VCD), pen drive, etc., pertaining to which

a statement is sought to be given in evidence, when the same is

produced in evidence. All these safeguards are taken to ensure

the source and authenticity, which are the two hallmarks

pertaining to electronic record sought to be used as evidence.

Electronic records being more susceptible to tampering,

alteration, transposition, excision, etc. without such

safeguards, the whole trial based on proof of electronic records

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can lead to travesty of justice.

16. Only if the electronic record is duly produced in terms of

Section 65B of the Evidence Act, the question would arise as to

the genuineness thereof and in that situation, resort can be

made to Section 45A – opinion of examiner of electronic

evidence.

17. The Evidence Act does not contemplate or permit the proof

of an electronic record by oral evidence if requirements under

Section 65B of the Evidence Act are not complied with, as the

law now stands in India.”

12. This judgment specifically over ruled the judgment rendered in

State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru (2005) 11 SCC

600, wherein a two Judge Bench of the Supreme Court had an occasion to

consider the issue regarding production of an electronic record as evidence

in which it was held:

“150. According to Section 63, secondary evidence means and

includes, among other things, “copies made from the original

by mechanical processes which in themselves insure the

accuracy of the copy, and copies compared with such copies”.

Section 65 enables secondary evidence of the contents of a

document to be adduced if the original is of such a nature as

not to be easily movable. It is not in dispute that the

information contained in the call records is stored in huge

servers which cannot be easily moved and produced in the

court. That is what the High Court has also observed at para

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276. Hence, printouts taken from the computers/servers by

mechanical process and certified by a responsible official of the

service-providing company can be led in evidence through a

witness who can identify the signatures of the certifying officer

or otherwise speak of the facts based on his personal

knowledge. Irrespective of the compliance with the

requirements of Section 65-B, which is a provision dealing with

admissibility of electronic records, there is no bar to adducing

secondary evidence under the other provisions of the Evidence

Act, namely, Sections 63 and 65. It may be that the certificate

containing the details in sub-section (4) of Section 65-B is not

filed in the instant case, but that does not mean that secondary

evidence cannot be given even if the law permits such evidence

to be given in the circumstances mentioned in the relevant

provisions, namely, Sections 63 and 65.”

In Anvar P.V.’s case (supra), it was further held as under:-

“21. It may be seen that it was a case where a responsible

official had duly certified the document at the time of

production itself. The signatures in the certificate were also

identified. That is apparently in compliance with the procedure

prescribed under Section 65B of the Evidence Act. However, it

was held that irrespective of the compliance with the

requirements of Section 65B, which is a special provision

dealing with admissibility of the electronic record, there is no

bar in adducing secondary evidence, under Sections 63 and 65,

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of an electronic record.

22. The evidence relating to electronic record, as noted herein

before, being a special provision, the general law on secondary

evidence under Section 63 read with Section 65 of the Evidence

Act shall yield to the same. Generalia specialibus non

derogant, special law will always prevail over the general law.

It appears, the court omitted to take note of Sections 59 and

65A dealing with the admissibility of electronic record.

Sections 63 and 65 have no application in the case of

secondary evidence by way of electronic record; the same is

wholly governed by Sections 65A and 65B. To that extent, the

statement of law on admissibility of secondary evidence

pertaining to electronic record, as stated by this court in Navjot

Sandhu case (supra), does not lay down the correct legal

position. It requires to be overruled and we do so. An electronic

record by way of secondary evidence shall not be admitted in

evidence unless the requirements under Section 65B are

satisfied. Thus, in the case of CD, VCD, chip, etc., the same

shall be accompanied by the certificate in terms of Section 65B

obtained at the time of taking the document, without which, the

secondary evidence pertaining to that electronic record, is

inadmissible.”

13. Per contra, Ms. Ojha relies upon a judgment rendered in Paras

Jain: Rajesh Tinker: Man Singh Versus State of Rajasthan 2015 Law

Suit (Raj) 1457, wherein it is been held that the judgment rendered in

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Anvar P.V ‘s case (supra) does not lay down the stage as to when there has

to be compliance of Section 65-B of the Indian Evidence Act. While taking

note of the judgment rendered in Anvar P.V ‘s case (supra), wherein it had

been held by the Supreme Court that requisite certificate must accompany

the electronic record pertaining to which the statement is sought to be given

in evidence, the High Court at Rajasthan held that it did not mean that such

certificate must be produced along with the charge sheet and if not produced

along with the charge sheet, the doors are closed. It has been held as:

“23. When legal position is that additional evidence, oral or
documentary, can be produced during the course of trial if in
the opinion of the Court production of it is essential for the
proper disposal of the case, how it can be held that the
certificate as required under Section 65-B of the Evidence Act
cannot be produced subsequently in any circumstances if the
same was not procured alongwith the electronic record and not
produced in the Court with the charge-sheet. In my opinion it is
only an irregularity not going to the root of the matter and is
curable. It is also pertinent to note that certificate was
produced alongwith the charge-sheet but it was not in a proper
form but during the course of hearing of these petitioners, it
has been produced on the prescribed form.”

14. In a recent judgment reported as (2017) 8 Supreme Court

Cases 570 Sonu alias Amar Versus State of Haryana, a question that

arose before the Supreme Court was, if there was non-compliance of Section

65-B of the Indian Evidence Act and no objection was taken therein, at both

the trial and the appellate stage, could that objection be raised for the first

time before the Supreme Court. In Sonu’s case (Supra), the court, while

convicting the accused for murder, relied on certain Call Details Records on

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a mobile phone recovered from the accused. Admittedly, the said details

were not compliant with the provisions of Section 65-B of the Indian

Evidence and at the time when the same were admitted in evidence, no

objection was raised regarding their admissibility, neither was any objection

raised before the appellate court. The objection was raised for the first time

by the senior advocate appearing on behalf of the accused before the

Supreme Court, wherein it was argued that the said CDR’s could not have

been relied upon by the trial/appellate court since Section 65-B of the Indian

Evidence Act had not been complied with. While dealing with the issue, the

Supreme Court held as under:-

“It is nobody’s case that CDRs which are a form of electronic
record are not inherently admissible in evidence. The objection
is that they were marked before the Trial Court without a
certificate as required by Section 65B (4). It is clear from the
judgments referred to supra that an objection relating to the
mode or method of proof has to be raised at the time of marking
of the document as an exhibit and not later. The crucial test, as
affirmed by this Court, is whether the defect could have been
cured at the stage of marking the document. Applying this test
to the present case, if an objection was taken to the CDRs being
marked without a certificate, the Court could have given the
prosecution an opportunity to rectify the deficiency. It is also
clear from the above judgments that objections regarding
admissibility of documents which are per se inadmissible can
be taken even at the appellate stage. Admissibility of a
document which is inherently inadmissible is an issue which
can be taken up at the appellate stage because it is a
fundamental issue. The mode or method of proof is procedural
and objections, if not taken at the trial, cannot be permitted at
the appellate stage. If the objections to the mode of proof are

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permitted to be taken at the appellate stage by a party, the
other side does not have an opportunity of rectifying the
deficiencies. The learned Senior advocate for the State referred
to statements under Section 161 of the Cr. P.C. 1973 as an
example of documents falling under the said category of
inherently inadmissible evidence. CDRs do not fall in the said
category of documents. We are satisfied that an objection that
CDRs are unreliable due to violation of the procedure
prescribed in Section 65 B (4) cannot be permitted to be raised
at this stage as the objection relates to the mode or method of
proof.” (emphasis supplied)

15. As per the ratio of the aforesaid judgments, it is abundantly

clear that any electronic media, which is relied upon, has to be proved in

terms of the provisions of Section 65-B of the Indian Evidence Act. A

careful reading of the said judgment rendered in Anvar’s case supra, as

relied upon by the learned Senior advocate for the petitioner, in the opinion

of this Court, does not specify the stage at which the said certificate has to

be adduced. Even in the judgment rendered in Sonus’s case Supra the

Supreme Court recognized that the mode or method of proof is at the time of

marking of the document as an exhibit and not necessarily earlier.

16. This issue came up for consideration before the High Court at

Delhi in Kundan Singh vs. State reported as CRL.A. 711/2014 decided

on 24.11.2014 when the Division Bench was seized of a question “whether

a certificate under sub-section (4) to Section 65B must be issued

simultaneously with the production of the computer output or a certificate

under Section 65B can be issued and tendered when the computer output

itself is tendered to be admitted as evidence in the court or as in the present

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case by the official when he was recalled to give evidence.” The Division

Bench held as under:

“43. Anwar P.V. (supra) partly overruled the earlier decision
of the Supreme Court on the procedure to prove electronic
record(s) in Navjot Sandhu (supra), holding that Section 65B is
a specific provision relating to the admissibility of electronic
record(s) and, therefore, production of a certificate
under Section 65B(4) is mandatory. Anwar P.V. (supra) does
not state or hold that the said certificate cannot be produced in
exercise of powers of the trial court under Section 311 Cr.P.C
or, at the appellate stage under Section 391 Cr.P.C. Evidence
Act is a procedural law and in view of the pronouncement in
Anwar P.V. (supra) partly overruling Navjot Sandhu (supra),
the prosecution may be entitled to invoke the aforementioned
provisions, when justified and required. Of course, it is open to
the court/presiding officer at that time to ascertain and verify
whether the responsible officer could issue the said certificate
and meet the requirements of Section 65B.”

17. The argument raised that only such electronic media, which is

duly proved in terms of Section 65-B of the Evidence Act, can be looked at

by the Investigating Officer is not sustainable. The power of the court is so

wide, that it can be exercised at any stage of the proceedings before

judgment is delivered and the Court must exercise the power if the

production of such document is necessary or desirable for the proper

decision in the case.

18. Criminal jurisprudence is such where every liberty is given to

both the parties, be it prosecution or the defence, to lead its evidence

virtually at any stage of the trial. Sub-section (1) of Section 91 Cr.P.C.

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provides that whenever any Court considers that the production of any

document is necessary or desirable for the purposes of any trial under the

Code by or before such Court, such Court may issue a summons to the

person in whose possession or power such document is believed to be,

requiring him to attend and produce it or to produce it, at the time and place

stated in the summons. Section 311 of the Code that has been enacted,

which allows the Court to summon any person as a witness or examine any

person in attendance though not summoned as a witness or recall and re-

examine any person already examined, if the Court is of the opinion that his

evidence appears to be essential for the just decision of the case. Under

these provisions, it is permissible for the court even to order production of

document before it, if it is essential for the just decision of the case. If wide

scope is given to the courts and the parties to summon witness, produce

additional evidence for just and proper disposal of the case, it is not feasible

that the courts would close out evidence only because the certificate under

Section 65-B is not accompanying the pen drive/mobile phone/computer/CD

etc (list is not exhaustive) and does not form a part of the challan as put up

under section 173 (2) of the Code. It has also to be borne in mind that

Section 173 (8) Cr.P.C. permits further investigation in respect of an offence

after a report under Sub-section (2) has been forwarded to the Magistrate

and, after further evidence, if oral or documentary evidence is obtained, the

investigating officer shall forward to the Magistrate a further report and the

provisions of Sub-sections (2) to (6) shall apply in relation to a report

forwarded under Sub-section (8).

19. Therefore, in view of the ratio of the judgment, referred to

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above, it is held that even though there has to be strict compliance of

Section 65-B of the Evidence Act pertaining to any electronic data, non-

compliance of the same would not render the said document inadmissible at

the time of framing of the charge. Needless to say that it is for the trial court

to refer to the validity of the document at the time of final judgment.

III Whether there has been abetment attributable to the
petitioner, as alleged in the FIR ?

IV Whether the charges framed under Section 6 and 10 of the
POCSO Act would be sustainable qua the petitioner?

20. This court proposes to deal with questions III and IV, as

framed, together.

21. An argument has been raised that a simpliciter reading of the

initial statement of the prosecutrix recorded on 28.6.2017 does not make out

any case of abetment against the petitioner since all the allegations were

against the grandfather. It is only subsequently that the investigating agency

in order to fill in the lacunae again recorded the statement under Section 161

of the Code of both the victim and her mother. The second statement

recorded is nothing but an improvement on the earlier statement and

suffered in order to rope in the petitioner as an accused.

22. The Protection of Children From Sexual Offences Act, 2012

enacted to protect children from offences of sexual assault, sexual

harassment and pornography and has very stringent provisions. Data has

been collected by the National Crime Records Bureau, which shows that

there has been increase in cases of sexual offences against children, and

interest of a child both as a victim as well as a witness needs to be protected.

Sexual abuse within the four corners of a home is also not uncommon.

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Section 16 of the POCSO Act, reads as under:-

16. Abetment of an offence.–A person abets an offence, who-

Firstly.– Instigate any person to do that offence; or

Secondly.–Engages with one or more other person or persons

in any conspiracy for the doing of that offence, if an act or

illegal omission takes place in pursuance of that conspiracy, and

in order to the doing of that offence; or

Thirdly.–intentionally aids, by any act or illegal omission, the

doing of that offence.”

Thus, according to Section 16 of the POCSO Act, any act or omission,

constitutes the offence of abetment, firstly if a person instigates any person

to do that offence; secondly, engages with one or more other person or

persons in any conspiracy for doing that offence, if an act or illegal omission

takes place in pursuance of that conspiracy, and in order to the doing of that

offence; or thirdly intentionally aids, by any act or illegal omission, the

doing of that offence. Further three explanations have been added to the

said Section, which reads as under:-

Explanation I.- A person who, by willful misrepresentation, or
by willful concealment of a material fact, which he is bound to
disclose, voluntarily causes or procures, or attempts to cause or
procure a thing to be done, is said to instigate the doing of that
offence.

Explanation II.- Whoever, either prior to or at the time of
commission of an act, does anything in order to facilitate the
commission of that act, and thereby facilitates the commission
thereof, is said to aid the doing of that act.

Explanation III.-Whoever employs, harbours, receives or
transports a child, by means of threat or use force or other forms

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of coercion, abduction, fraud, deception, abuse of power or of a
position, vulnerability or the giving or receiving of payments or
benefits to achieve the consent of a person having control over
another person, for the purpose of any offence under this Act, is
said to aid the doing of that act.”

23. Learned Senior Advocate appearing on behalf of the petitioner

argues that there is no abetment as far as reading of the section goes.

Nowhere in the FIR has it been stated that the petitioner had instigated her

husband to commit the offence; nor has there been any conspiracy with her

husband for sexual harassment/molestation of the minor victim nor has she

intentionally aided her husband in the commission of the alleged offence. It

is further argued that the charge-sheet does not specifically mention as to

under which of the provisions of Section 16 of the POCSO Act, namely,

first, second or third, the petitioner is being charge-with.

24. In this regard, this Court has gone through the summoned

police file and perused the statements recorded. As per the disclosure

statement of the petitioner recorded on 5.7.2017, it is specifically mentioned

that Punam Thakur has confessed of her own volition in the presence of the

witnesses that her granddaughter had informed her, that her husband–

Shailzanand Thakur used to do wrong acts with her, and upon being

informed, she said that she would give beatings to the grandfather.

However, she did not take any serious note of her granddaughter’s statement

in order to avoid any harm to the reputation of the family.

25. This memo of confession, as available on the police file, would

prima facie be indicative that there has been illegal omission on the part of

the petitioner, in so far as not disclosing the act of her husband–

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Shailzanand Thakur–to the parents of the minor victim. In the explanation

(I) that has been given to Section 16 of the POCSO Act , it is enumerative

that a person who by willful concealment of a material fact, which he is

bound to disclose, voluntarily causes or procures, or attempts to cause or

procure a thing to be done, is said to instigate that offence. This explanation

would be read down to the effect that the petitioner was bound to disclose

the commission of the offence being committed upon the minor

granddaughter, as soon as the same was disclosed to her.

26. In the complaint, there is a specific allegation that the petitioner

was present in the house and was made aware by the grand-daughter that she

was being caused hurt by the grandfather which statement was neither

looked at nor heeded to. Thus, an element of ‘abetment’ as spelt out under

Section 16 of the POCSO Act is prima facie made out.

27. Another argument has been raised by the senior Advocate for

the petitioner that the petitioner has not been specifically charged for any

part of Section 16 of the POCSO ACT of 2012 and the said charge being

omnibus is not sustainable. However, this argument is devoid of any merit.

Section 211 of Cr.P.C enumerates that every charge shall state the offence

with which the accused is charged with. Section 215 of Cr.P.C. takes into

account a situation where there is an error in the framing of charges: section

provides that ‘No error in stating either the offence or the particulars

required to be stated in the charge, and no omission to state the offence or

those particulars, shall be regarded at any stage of the case as material,

unless the accused was in fact misled by such error or omission, and it has

occasioned a failure of justice’. A co-joint reading of both the aforesaid

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sections would lead this Court to a conclusion that a person must be made

aware of the offence that he/she is being accused of. Merely because the

general offence does not enumerate as to how the abetment has been done or

which subsection is invoked, omission of such error, would not make the

charge invalid.

28. While dealing with the issue of framing of charge, the Supreme

Court in Chandra Prakash Versus State of Rajasthan (2014) 8 Suprme

Court Cases 340 held as under:-

“68. The next aspect which needs to be adverted to is non-
framing of specific charge. On a perusal of the record, we find
that the learned trial Judge has framed the charges specifically
by putting the charges to the accused. The purpose of framing
of charges is that the accused should be informed with certainty
and accuracy of the charge brought against him. There should
not be vagueness. The accused must know the scope and
particulars in detail. In this context, we may refer to decision in
Santosh Kumari v. State of Jammu and Kashmir and others
39, wherein it has been held as follows: –

“17. Like all procedural laws, the Code of Criminal
Procedure is devised to subserve the ends of justice and
not to frustrate them by mere technicalities. It regards
some of its provisions as vital but others not, and a
breach of the latter is a curable irregularity unless the
accused is prejudiced thereby. It places errors in the
charge, or even a total absence of a charge in the
curable class. That is why we have provisions like
Sections 215 and 464 in the Code of Criminal Procedure,
1973.

18. The object of the charge is to give the accused notice
of the matter he is charged with and does not touch

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jurisdiction. If, therefore, the necessary information is
conveyed to him in other ways and there is no prejudice,
the framing of the charge is not invalidated. The
essential part of this part of law is not any technical
formula of words but the reality, whether the matter was
explained to the accused and whether he understood
what he was being tried for. Sections 34, 114 and 149
IPC provide for criminal liability viewed from different
angles as regards actual participants, accessories and
men actuated by a common object or a common
intention; and as explained by a five-Judge Constitution
Bench of this Court in Willie (William) Slaney v. State of
M.P.40 SCR at p. 1189, the charge is a rolled-up one
involving the direct liability and the constructive liability
without specifying who are directly liable and who are
sought to be made constructively liable.”

29. In view of the above discussion, it prima facie appears that the

charge of ‘abetment’ is attributable to the petitioner since she failed by

illegal omission to disclose the offence complained of to the parents and

hence the charges under Section 506 IPC and Sections 6, 10 and 16 of the

POCSO Act were rightly framed by the trial court.

30. Before parting with this judgment, this Court would like to deal

with the revisional power of this court to interfere with framing of charges.

There are a catena of judgments, which have gone into the question as to

what factors should be considered by the Court at the time of framing of

charges. Sajjan Kumar VS. CBI (2010) 9 SCC 368, Soma Chakravorty

vs. State through CBI (2007) 5 SCC 403, Amit Kapoor Versus Ramesh

Chander and another (2012) 9 SCC 460 are some judgments where it

has been categorically held that a court is required to evaluate the material

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and documents on record to see if the facts emerging therefrom, taken at

their face value, would constitute the offence alleged. It is not possible to

sift the evidence at the initial stage. The Court is to only apply its judicial

mind on the material placed before it and be satisfied that there is a

commission of offence. At the stage of framing of charge, the Court is not

to enter into a roving inquiry to appreciate or weigh the material on record

and only then frame charges. Strong suspicion is enough for a Court to form

a presumptive opinion as to the existence of an event having taken place,

justifying framing of charge. The Supreme Court, in a latest judgment

rendered in State of Rajasthan Versus Fatehkaran Mehdu AIR 2017 SC

796, while relying upon the judgment in Amit Kapoor Versus Ramesh

Chander and another (2012) 9 SCC 460, has categorically held as under:-

“26. The scope of interference and exercise of jurisdiction
under Section 397 of Cr.P.C. has been time and again
explained by this Court. Further, the scope of interference
under Section 397 Cr.P.C. at a stage, when charge had been
framed, is also well settled. At the stage of framing of a charge,
the court is concerned not with the proof of the allegation
rather it has to focus on the material and form an opinion
whether there is strong suspicion that the accused has
committed an offence, which if put to trial, could prove his
guilt. The framing of charge is not a stage, at which stage final
test of guilt is to be applied. Thus, to hold that at the stage of
framing the charge, the court should form an opinion that the
accused is certainly guilty of committing an offence, is to hold
something which is neither permissible nor is in consonance
with scheme of Code of Criminal Procedure.

27. Now, reverting to the limit of the scope of jurisdiction under
Section 397 Cr. P.C., which vests the court with the power to

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call for and examine the records of an inferior court for the
purposes of satisfying itself as to the legality and regularity of
any proceedings or order made in a case. The object of this
provision is to set right a patent defect or an error of
jurisdiction or law or the perversity which has crept in the
proceeding.

28. It is useful to refer to judgment of this Court in Amit
Kapoor and Ramesh Chander and Another, (2012) 9 SCC
460, where scope of Section 397 Cr. P.C. have been succinctly
considered and explained. Para 12 and 13 are as follows:

“12.Section 397 of the Code vests the court with the
power to call for and examine the records of an inferior
court for the purposes of satisfying itself as to the legality
and regularity of any proceedings or order made in a
case. The object of this provision is to set right a patent
defect or an error of jurisdiction or law. There has to be
a well founded error and it may not be appropriate for
the court to scrutinize the orders, which upon the face of
it bears a token of careful consideration and appear to
be in accordance with law. If one looks into the various
judgments of this Court, it emerges that the revisional
jurisdiction can be invoked where the decisions under
challenge are grossly erroneous, there is no compliance
with the provisions of law, the finding recorded is based
on no evidence, material evidence is ignored or judicial
discretion is exercised arbitrarily or perversely. These
are not exhaustive classes, but are merely indicative.
Each case would have to be determined on its own
merits.”

“13. Another well accepted norm is that the revisional
jurisdiction of the higher court is a very limited one and cannot
be exercised in a routine manner. One of the inbuilt restrictions
is that it should not be against an interim or interlocutory

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order. The Court has to keep in mind that the exercise of
revisional jurisdiction itself should not lead to injustice ex
facie. Where the Court is dealing with the question as to
whether the charge has been framed properly and in
accordance with law in a given case, it may be reluctant to
interfere in exercise of its revisional jurisdiction unless the case
substantially falls within the categories aforestated. Even
framing of charge is a much advanced stage in the proceedings
under the CrPC.”

29. The Court in para 27 has recorded its conclusion and laid
down principles to be considered for exercise of jurisdiction
under Section 397 particularly in context of quashing of charge
framed under Section 228 Cr. P. C. Para 27, 27(1), (2), (3), (9),
(13) are extracted as follows:

“27. Having discussed the scope of jurisdiction under
these two provisions, i.e., Section 397 and Section 482 of
the Code and the fine line of jurisdictional distinction,
now it will be appropriate for us to enlist the principles
with reference to which the courts should exercise such
jurisdiction. However, it is not only difficult but is
inherently impossible to state with precision such
principles. At best and upon objective analysis of various
judgments of this Court, we are able to cull out some of
the principles to be considered for proper exercise of
jurisdiction, particularly, with regard to quashing of
charge either in exercise of jurisdiction under Section
397 or Section 482 of the Code or together, as the case
may be:

27.1) Though there are no limits of the powers of the
Court under Section 482 of the Code but the more the
power, the more due care and caution is to be exercised
in invoking these powers. The power of quashing
criminal proceedings, particularly, the charge framed in

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terms of Section 228 of the Code should be exercised
very sparingly and with circumspection and that too in
the rarest of rare cases.

27.2) The Court should apply the test as to whether the
uncontroverted allegations as made from the record of
the case and the documents submitted therewith prima
facie establish the offence or not. If the allegations are so
patently absurd and inherently improbable that no
prudent person can ever reach such a conclusion and
where the basic ingredients of a criminal offence are not
satisfied then the Court may interfere.

27.3) The High Court should not unduly interfere. No
meticulous examination of the evidence is needed for
considering whether the case would end in conviction or
not at the stage of framing of charge or quashing of
charge.

27.9) Another very significant caution that the courts
have to observe is that it cannot examine the facts,
evidence and materials on record to determine whether
there is sufficient material on the basis of which the case
would end in a conviction; the Court is concerned
primarily with the allegations taken as a whole whether
they will constitute an offence and, if so, is it an abuse of
the process of court leading to injustice.
27.13) Quashing of a charge is an exception to the rule
of continuous prosecution. Where the offence is even
broadly satisfied, the Court should be more inclined to
permit continuation of prosecution rather than its
quashing at that initial stage. The Court is not expected
to marshal the records with a view to
decide admissibility and reliability of the documents or
records but is an opinion formed prima facie.”

31. In view of the aforesaid well settled proposition of law that no

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meticulous examination of the evidence is needed for considering whether

the case would end in conviction or not at the stage of framing of charge,

this revision petition is dismissed, being bereft of merit. However, it is

made clear that the trial court shall not be influenced by any observations

made herein above.

December 6, 2017 (JAISHREE THAKUR)
prem JUDGE

Whether speaking/reasoned Yes
Whether reportable Yes

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