Advocates:
['P C PETSHALI', '', 'KAUSHAL SAH JAGATI', 'G A', 'VINOD CHANDRA', 'B N MolakhiR P Singh']

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Revision No. 491 of 2022

Deepak Danu

....Revisionist

Vs.

State of Uttarakhand and Another

..... Respondents

Mr. P.C. Petshali and Mr. Kaushal Sah Jagati, Advocates for the

revisionist.

Mr. V.S. Rathore, A.G.A. for the State of Uttarakhand.

Ms. Sonali Shah, Advocate holding brief of Mr. B.N. Molakhi, Advocate

for the accused.

JUDGMENT

Hon’ble Ravindra Maithani, J. (Oral)

The challenge in this revision is made to

order dated 20.08.2022, passed in Special Sessions Trial

No.412 of 2021, State Versus Goldy Rajiv Santhoji, by

the court of Additional Sessions Judge/FTSC/Rudrapur,

District-Udham Singh Nagar (“the case”). The revisionist

is aggrieved by that portion of order, by which charge

under Section 8 instead of Section 9 of the Protection of

Children from Sexual Offences Act, 2012 (“the POCSO

Act”) has been framed on the accused and also that

portion of order is put to challenge, by which PW1 and

PW2

have

been

summoned

for

further

cross-

examination.

2.

Heard learned counsel for the parties and

perused the record.

2

3.

Facts

necessary

to

appreciate

the

controversy, briefly stated, are as follows: Parents-

teachers association of one residential school filed an

FIR on 01.07.2015 at Police Station Pulbhatta under

Sections 377, 511 IPC and Section 9(f)/10 of the POCSO

Act. Based on this FIR, investigation was conducted and

police filed a final report. Subsequently, by order dated

06.05.2021, of this Court, passed in Criminal Misc.

Application No.31 of 2021, the final report was rejected

and further investigation was ordered (It has been

recorded in the chargesheet). Further investigation was

carried out. Thereafter, chargesheet under Sections 377

IPC and Section 5(f) of the POCSO Act has been

submitted

against

the

private

respondent

(“the

accused”). Cognizance was taken and it is the basis of

the case.

4.

In the case, initially on 29.10.2021, charge

under Section 377 IPC and Section 5(f)/6 of the POCSO

Act was framed. Two witnesses, PW1, Victim No.4 and

PW2, Victim No.1-D were examined. Thereafter, an

application was filed by the prosecutor on 06.06.2022

stating therein that there are many victims in the case,

but in the charge, the names of the victims have not

been distinctly referred to. Therefore, charge may be

3

amended. This application was allowed by the impugned

order dated 20.08.2022 and on 20.08.2022, distinct

charges with regard to each victim were framed. Those

charges are under Section 377 IPC and Sections 6 and 8

of the POCSO Act.

5.

When the charges were framed, on behalf

of the accused, an application was filed stating therein

that since charges have been reframed, accused may be

permitted to further cross-examine PW1 and PW2. This

application was also allowed by the impugned order

dated 20.08.2022 and PW1 and PW2 have been

summoned for further cross-examination.

6.

Learned counsel for the revisionist would

submit that the accused was Manager of the residential

school. Under such circumstances, the provisions of

Section 9 of the POCSO Act are attracted instead of

Section 8 of the POCSO Act. But, it is argued that the

court below did commit an error in framing charge

under Sections 8 of the POCSO Act.

7.

It is also submitted on behalf of the

revisionist that charges, in fact, have not been changed,

instead, with regard to each victim, they have been

4

separated. PW1, who is Victim No.4 and PW2, Victim

No.1-D, have stated about the act done against them.

They have been cross examined. Therefore, there is no

occasion for the accused to seek further cross

examination of PW1 and PW2.

8.

On

the other

hand,

learned

counsel

appearing for the accused would submit that in case

further cross-examination of PW1 and PW2 is denied, it

would seriously prejudice the defence of