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2022 Supreme(Cal) 571
IN THE HIGH COURT OF CALCUTTA
Jay Sengupta, J.
Anish Loharuka - Appellant
Versus
State Of West Bengal - Respondent
CRAN 1 of 2022 & In CRR 1340 of 2022
Decided On : 11-07-2022
Mr. Krisnendu Bhattacharya Mr. Rajib Mallick Mr. Priyankar Ganguly Mr. Deep Bairagi Ms. Shalini Bairagi Ms. Sonia Mukherjee Advocates, for the Appellant; Mr. Avishek Guha Ms. Akansha Chopra Advocates, Mr. Madhusudan Sur Mr. Dipankar Paramanick Advocates, for the Respondent
The judgment emphasized the protection of the minor victim's identity and balanced it with the accused's right to access documents relied on by the prosecution, citing legal provisions and previous decisions to support its directions.
Headnote:
POCSO - Application for recalling judgment - Information and Technology Act, Section 120B, 354D, 385, 506 of the Penal Code and Sections 4, 8 of the POCSO Act - The judgment and order dated 10.05.2022 partly set aside the impugned order and directed the supply of legible copies of documents, inspection of electronic evidence, and consideration of charge by the Trial Court. The court emphasized the protection of the minor victim's identity and balanced it with the accused's right to access documents relied on by the prosecution. The court cited legal provisions and previous decisions to support its directions.
Fact of the Case:
The application was filed by an accused challenging an order regarding non-supply of copies in a proceeding pending before a learned Trial Court. The applicant, a victim of the alleged offenses, argued that her identity was not protected and her private videos and images were disclosed to the accused.
Finding of the Court:
The court found that the directions passed in the judgment were in line with the protection of the minor victim's privacy rights and balanced the rights of the victim and the accused in a criminal trial. The court dismissed the application, citing Section 362 of the Code of Criminal Procedure as an absolute bar against recalling or reviewing its own judgment.
Issues: The issues involved the protection of the minor victim's identity, the accused's right to access documents relied on by the prosecution, and the application of Section 362 of the Code of Criminal Procedure.
Ratio Decidendi: The court emphasized the protection of the minor victim's identity and cited legal provisions and previous decisions to support its directions. The court also highlighted the balance between the rights of the victim and the accused in a criminal trial.
Final Decision: The court dismissed the application and stated that Section 362 of the Code of Criminal Procedure is an absolute bar against recalling or reviewing its own judgment. No costs were imposed on the applicant due to her status as a purported victim in the case.
JUDGMENT
Jay Sengupta, J. - This is an application for recalling a judgment and order dated 10.05.2022 passed by this Court in CRR 1340 of 2022.
2. The revisional application being CRR 1340 of 2022 was filed by the accused petitioner challenging an order dated 11.04.2022 passed by the learned Additional Sessions Judge, Bench - II, City Sessions Court, Calcutta in Special POCSO Case No. 7 of 2020 under Sections 66E, 67, 67A, 67B and 84B of the Information and Technology Act, Section 120B, 354D, 385 and 506 of the Penal Code and Sections 4 and 8 of the Protection of Children from Sexual Offences (POCSO Act, for short). The present applicant was not made a party in the said revision.
3. By a judgment and order dated 10.05.2022 passed in the said revision being CRR No. 1340 of 2022, this Court was pleased to dispose of the same by partly setting aside the impugned order and with the following directions-
'a) Legible copies of documents shall be supplied to the accused which were directed to be supplied on 11.04.2022 and did not have any scope of disclosing the identity of the minor victim.
b) Copies of documents, if any, available in the electronic medium, which do not have any scope to disclose the identity of the minor victim would also be supplied to the accused, if the learned Court find that copying the drive would not damage the original.
c) The accused would be permitted to inspect the electronic evidence along with his learned advocate and I.T. expect, if he chooses to engage such an expert for such purpose.
d) After supply of such copies and/or inspection of documents as referred to above, the learned Trial Court shall fix a date for consideration of charge and proceed thereafter.'
4. Learned counsel appearing on behalf of the applicant submitted as follows. The instant application was filed in spite knowing about the statutory bar of Section 362 of the Penal Code in respect of recall or review of a final judgment and order. The applicant was a victim of the alleged offences and at the relevant point, she was a minor. Yet, her identity was not protected either by the investigating agency or by the learned trial Court.
The applicant's private videos and images had been depicted in the copies of documents and handed over to the accused. Reliance was placed on the decision in the case of Nipun Saxena versus Union & others reported in 2019 (2) SCC 703. Reliance was also placed on the decision in Prafulla Mura passed by a Division Bench of this Court on 18.04.2022 in CRA (DB) 29 of 2022. Since the present applicant was not heard at the time of deciding the main revisional application these points might not have been placed properly before the Court.
5. Learned counsel appearing on behalf of the petitioner submitted as follows. Section 362 of the Code imposed as clear bar on this Court to either review or recall a final judgment and order passed even if it was later found that principles of natural justice were violated. It was another thing that the present applicant had not right of hearing in the said revision because the present case was a State case and the applicant's role was that of a mere witness. In any event, the applicant was an adult at the present and had chosen to disclose her identity in this application. On merits, the petitioner as an accused in a trial had every right to either seek copies of documents relied on by the prosecution or to take inspection of such documents if the Court decided not to supply such copies. Reliance was placed on the decisions in the cases of Harjeet Singh versus State of West Bengal, 2005 SCC Online Cal 201; Mohammed Zakir versus Shabana and Others, (2018) 15 SCC 316 and Narayan Prasad versus State of Bihar and Others, (2019) 14 SCC 726.
6. Learned counsel appearing on behalf of State submitted as follows. The present case was a State case. If an order was challenged by an accused by way of a revision in the midst of the proceeding, the present applicant or any other victim being a mere witne
