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2024 Supreme(UK) 647
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
VIVEK BHARTI SHARMA, J.
Parvez - Petitioner
Versus
State of Uttarakhand & Anr. - Respondents
Criminal Misc. Application No. 765 of 2024
Decided On : 11-11-2024
For the Petitioner: Mr. Mani Kumar, counsel.
For the State : Mr. Pratiroop Pandey, learned A.G.A.
IMPORTANT POINT
The court upheld the dismissal of a petition to re-cross-examine witnesses, emphasizing the established age of the prosecutrix and the need to prevent delays in justice.
Headnote:
(A) Protection of Children from Sexual Offences Act - Sections 5 and 6 - Criminal Procedure Code - Section 311 - Petition to quash order dismissing application for re-cross-examination of prosecution witnesses - Application dismissed as it was filed three years post-examination and aimed to delay justice - Age of prosecutrix established as 15.04.2008, making her a minor at the time of the incident. (Paras 2, 4, 6, 9)
(B) Powers under Section 528 B.N.S.S. - Must be exercised sparingly to prevent abuse of process and secure justice - Not applicable in this case. (Paras 7, 8)
Facts of the case:
The petitioner/accused sought to re-cross-examine the prosecutrix and her father to question the age of the prosecutrix, who was charge-sheeted under IPC and POCSO Act. The application was dismissed by the trial court.
Findings of Court:
The court found no merit in the petition, emphasizing the established age of the prosecutrix and the unnecessary delay caused by the application.
Issues: Whether the application for re-cross-examination was justified and whether it aimed to delay proceedings.
Ratio Decidendi: The court ruled that the application was an attempt to harass the prosecutrix and delay justice, with no substantial basis for questioning her age.
Result: Petition dismissed.
JUDGMENT :
Vivek Bharti Sharma, J.
The present petition under Section 528 of B.N.S.S. is filed by the petitioner/accused to quash the order dated 12.08.2024, whereby the application under Section 311 of Cr.P.C. filed by the petitioner/accused to re-cross-examine the prosecution witnesses i.e. PW1 prosecutrix/victim & PW2 father of the prosecutrix/complainant on additional facts and questions, was dismissed by learned Additional District Judge/F.T.C./Special Judge (POCSO), Rudrapur, District Udham Singh Nagar.
2. The brief facts of the case are that the petitioner/accused was charge-sheeted under Sections 363, 366, 376(2) of IPC and Section 5/6 of the Protection of Children from Sexual Offences Act (in short ‘POCSO Act); that, after framing of charges, the petitioner/accused is facing trial for the offence punishable under Sections 363, 366, 376(2) of IPC and Section 5/6 of the POCSO Act; that, the prosecutrix/victim and her father/complainant were examined in the trial court as PW1 & PW2 respectively; that, an application under Section 311 of Cr.P.C. was moved (annexed as Annexure No. 4 to the petition) for recalling the PW1 & PW2 i.e. prosecutrix/victim and her father/complainant respectively on the ground that a number of questions were necessary to be asked to the prosecutrix/victim and her father. However, that application was dismissed vide order dated 12.08.2024 Hence, this petition.
3. Learned counsel for the petitioner/accused would submit that during the cross-examination of the father of the prosecutrix/victim as PW2, it came to the knowledge that the prosecutrix/victim i.e. PW1 is adopted daughter of PW2 and to create the doubt about the age of the prosecutrix/victim, these questions are necessary.
4. Learned State counsel would vehemently oppose the present petition on the ground that the application under Section 311 of Cr.P.C. was moved approximately three years after recording of the statement of the prosecutrix/victim as PW1 in the trial court and that there is caution under sub-section 5 of Section 33 of the POCSO Act that the Special Court shall ensure that the child is not called repeatedly to testify in the court; that, the age of the prosecutrix/victim has been proved by the prosecution in the trial court by examining the Principal of the school attended by the prosecutrix/victim.
He would further submit that the prosecutrix/victim has been examined in the trial court extensively almost on all the points running into nine pages; that, as per the evidence proved in the trial through the Principal of the school prosecutrix/victim last attended, the date of birth of the prosecutrix/victim is 15.04.2008 and at the time of the alleged incident, the age of the prosecutrix/victim can be at most 13 years; that, in the cross-examination not a single question was asked to the prosecutrix/victim in the trial court which would show her to be major at the time of the alleged incident.
5. Learned State counsel would further submit that the application under Section 311 of Cr.P.C. is nothing but just an attempt to harass the prosecutrix/victim and her father/complainant and to delay the dispensation of justice; that, the trial is already going on for more than three years and it should be decided at the earliest.
6. Having heard learned counsel for the parties and perused the record, this Court finds force in the arguments of the learned State counsel, however, learned counsel for the petitioner/accused would himself fairly concede that in the cross-examination, no suggestion/question was put to the prosecutrix/victim i.e. PW1 that she was major at the time of the alleged incident or not; that, as per the school records, the date of birth of the prosecutrix/victim has come as 15.04.2008.
7. It is trite that the powers under Section 528 B.N.S.S. have to be exercised sparingly, carefully and with caution and only to prevent abuse of process of any Court or otherwise to secure ends of justice.
8. In the considered view of this Court,
