The main legal point established in the judgment is the discretion of the court under Section 38(1) of the POCSO Act and its alignment with the proviso to amended Section 119 of the Evidence Act, 1872 in providing an interpreter to a child victim during cross-examination.

JUDGMENT :

Vikas Kunvar Srivastav, J.

The present revision is moved on behalf of the accused-applicants involved in Case Crime No. 287 of 2017, under Section 376-D Indian Penal Code, 1860 and Section 7/8 of Protection of Children from Sexual Offences Act, 2012 (hereinafter which shall be referred as 'POCSO' in short), Police Station PGI, District Lucknow. The revision is directed against the order of Addl. Sessions Judge/Special Judge POCSO Act, Lucknow dated 22.07.2019, made Annexure no. 1 to this revision.

2. Heard learned counsel for the revisionists, learned Additional Government Advocate for the State on the point of admission of the revision. Learned A.G.A. termed the order, impugned in this revision, in nature, 'interlocutory order'. He further argued, since revision is moved under Section 397/401 of the Code of Criminal Procedure, 1973, therefore there is a bar as to the admissibility contained under sub Section (2) of Section 397 Cr.P.C.

3. For easy reference Section 397 (2) is quoted below:.

"(2) The powers of revision conferred by sub- section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding."

4. Learned A.G.A. argued that in view of the aforesaid Clause (2) of Section 397 Cr.P.C., there is a clear bar on the admissibility of the revision, being moved against an interlocutory order, hence must be dismissed at the very stage of admission.

5. Learned counsel for the revisionists, despite the contention of learned A.G.A. as to the bar on admissibility of revision, without addressing the issue, emphasized on the point that the impugned order is passed by the Special Court, in utter violation of the law, misconstruing the provisions of Section 38 of the POCSO Act which occasioned a serious illegality, causing grave injustice to the accused-revisionist, hence the revision lies and impugned order is liable to be interfered exercising power of revision by the Court.

6. In the light of arguments, examined the impugned order alongwith the other materials, placed on record, whether it is passed misconstruing the provisions of Section 38 of the POCSO Act read with the relevant provision of Indian Evidence Act, 1872, applicable to recording of the statement of a victim of sexual offences, during trial.

7. Before discussing the arguments, raised by learned counsel for the revisionists, it would be helpful in judging the legality of the order to look into the facts of the incident, as well as proceeding of the trial before Special court.

8. The First Information Report, briefly stating, discloses that the victim, 5 years' old girl-child, was being sexually abused in the premises of her school "Allen House Public School," Vrindavan Yojna, Lucknow. She, in the age of 4 years, got admission in the said school. On 10.05.2017, the informant lodged First Information Report when she (the mother) noticed that intermittently her daughter suffers sickness with complaint of burning and difficulty while urinating. At the relevant time of lodging the FIR, the child was of 5 years in age. She noticed further that private part of her daughter has some swelling. When she asked the daughter, her reply disclosed that in her school a bhaiya of elder age, who had magic tricks and stories of fairies, on the pretext of entertaining her with magic and stories, used to insert fingers and some other things in her private part. She further told that there were several boys elder in age, students of Class-10, who used to be dressed like her father, also taken her in a room in the school premises where an aunty caught her hold from back and then those elder boys inserted finger and some other things in her private part. Several other like allegations made in the FIR were investigated. The accused-revisionists came into picture as one of the culprits. Naturally, a case alongwith relevant Sections of the Indian Penal Code and Section 3/4 of the 'Prevention of Children from Sexual Offences Act, 201