IN THE HIGH COURT OF PUNJAB & HARYANA

AT CHANDIGARH

201

CRR-3784-2017(O&M)

Date of decision: 30.05.2022

BALWINDER SINGH @ BINDER SINGH

....Petitioners(s)

Versus

STATE OF PUNJAB

...Respondent(s)

CORAM: HON'BLE MR. JUSTICE VINOD S. BHARDWAJ

*****

Present :

Mr. Sarwinder Goyal and Mr. Sardavinder Goyal, Advcoates

for the petitioner.

Ms. Amarjit Kaur Khurana, DAG Punjab.

*****

VINOD S. BHARDWAJ. J. (ORAL)

The instant revision petition has been filed under Section 401 of the

Code of Criminal Procedure (hereinafter referred to as 'CrPC') for setting aside

the impugned order dated 08.09.2017 passed by Additional Sessions Judge,

Barnala, whereby the application under Section 311 CrPC for summoning of

witness before the trial Court in FIR No.17 dated 18.03.2015 under Section 377

of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and Section 5 of

the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred

to as 'POCSO Act') registered at Police Station Rureke Kalan District Barnala has

been illegally and arbitrarily allowed.

2.

Learned counsel for the petitioner contends that the order passed is

illegal inasmuch as the child was not named as a witness in the report furnished

under Section 173 CrPC. No testimony of the child witness had been recorded by

the Police during the course of investigation either under Section 161 CrPC or

Section 164 CrPC and as such, there is every possibility of the child having been

SANDAL SHARMA

2022.06.03 17:13

I attest to the accuracy and

integrity of this document

CRR-3784-2017(O&M)

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tutored. He contends that the attempt of the prosecution to produce the child as a

witness after almost 02 years and 6 months from the date of the alleged incident in

the year 2015 was clearly an attempt to fill in the lacunae in the case of the

prosecution. He further submits that the medical report of the victim does not

support the version of the prosecution. It is pointed out that the medical

examination of the victim was conducted on 20.03.2015 as per the said medical

examination, there was no external marks of the injury and that the perianal skin

was normal, there was no scar, no redness and tenderness on palpation present. It

is contended that on reading of the said MLR, it clearly rules out the commission

of offence punishable under Section 377 IPC and Section 5 of the POCSO Act. He

further submits that the statement of the father and mother have already been

recorded by the trial Court which does not make out any offence against the

petitioner from perusal of the said statement.

3.

A further reference is made to Section 35 of the POCSO Act, 2012 to

contend that the said provision contains that the evidence of the child has to be

recorded within a period of 30 days of the Special Court taking cognizance of the

offence and reasons for the delay, if any, shall be recorded by the Special Court. A

further reference is made to the provision of Section 164 (5A) CrPC to contend

that it is mandatory for the police to get the statement of the victim recorded under

Section 164 CrPC where the offence is related to Section 354 and 376 of the IPC

and in the nature of rape. He contends that the said provision has not been

incorporated consciously by the legislature while carrying out the amendment in

the year 2013 since a similar provision stands incorporated in the POCSO Act

itself.

4.

Learned counsel for the petitioner also made a reference to the

SANDAL SHARMA

2022.06.03 17:13

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integrity of this document

CRR-3784-2017(O&M)

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judgment of the Delhi High Court in the matter of Hari Prasad Meena V/s State,

reported as 2010 (7) RCR (Criminal) 1594 to contend that the child witness

having not been produced before the Court for recording the statement under

Section 164 CrPC when the incident was fresh in her mind cannot be permitted to

be produced in evidence at a later stage.

5.

Per contra, learned State