Anish Loharuka vs The State Of West Bengal
2022 Latest Caselaw 4109 Cal

                     IN THE HIGH COURT AT CALCUTTA
                     CRIMINAL REVISIONAL JURISDICTION
                              Appellate Side


Present:

The Hon'ble Justice Jay Sengupta



                             CRAN 1 of 2022
                           In CRR 1340 of 2022
                             Anish Loharuka

                                  Versus

                          The State of West Bengal



For the petitioner            :    Mr. Krisnendu Bhattacharya
                                   Mr. Rajib Mallick
                                   Mr. Priyankar Ganguly
                                   Mr. Deep Bairagi
                                   Ms. Shalini Bairagi
                                   Ms. Sonia Mukherjee
                                                           ..... Advocates


For the victim girl           :    Mr. Avishek Guha
                                   Ms. Akansha Chopra
                                                           ..... Advocates
For the State                 :    Mr. Madhusudan Sur
                                   Mr. Dipankar Paramanick
                                                           .....Advocates


Lastly heard on               :    30.06.2022
                                        2



Judgment on                    :      11.07.2022

Jay Sengupta, J.:

1.

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 witness would not have any right of hearing in

the same. In any event, Section 362 imposed a complete bar on this Court to

recall or review a judgment passed on merits.

7. I heard the learned counsel appearing on behalf of the parties and

perused the application.

8. First, the revisional application being CRR 1340 of 2022 was filed by

an accused challenging an order regarding non-supply of copies in a

proceeding pending before a learned Trial Court. Neither was the present

applicant made be a party in the application nor did she have any right of

hearing in the same. A de facto complainant or a victim would have a right

of hearing in a revisional proceeding which would have the tendency of

putting an end to the original proceeding. But, the present application being

1340/2022 was not an application of such a nature.

9. In order to protect the right of privacy of minor victims several ratios

have been laid down by the Hon'ble Apex Court and Hon'ble High Courts.

The directions passed in this case are in keeping with the same, especially

with the ratios laid down in Nipun Saxena (supra) and Prafulla Mura

(supra). In fact, in Prafulla Mura (supra), an Hon'ble Division Bench of this

Court held-

"(f) Inspection of the documents/annexure filed in the proceeding

disclosing identity of the victim and kept in sealed cover shall be given

only with the permission of the Court."

10. The judgment in this revision was also passed keeping in view the

rights of a victim, albeit a minor at the date of occurrence, especially to have

her identity protected. Afterall, a balance has to be struck regarding such

rights of the victim and the right of an accused in a criminal trial to be made

aware of the documents that are to be relied on against him. That is why

reliance was placed on the decision of the Hon'ble Apex Court in the case of

P. Gopalkrishnan @ Dilip Versus State of Kerala and another reported in

2020 9 SCC 161. There is no direction passed by this Court in the said

revision that could possibly have a tendency of disclosing the victim's

identity to a third party.

11. It appears that the prime grievance of the applicant was about the

purported disclosure of her identity by the investigating agency and others

prior to the filing of the present revision. Any relief sought in this regard is

beyond the scope of this revision or for that matter the present application.

12. It is also quite strange and very unfortunate that all these long when

copies of documents were being purportedly supplied to the accused, even

long after becoming an adult, the petitioner did not take any step in this

respect. But, only after the present order was passed protecting her rights,

she chose to intervene.

13. Lastly, for a better exposition of the question of law involved, Section

362 of the Code may be quoted as under.

"362. Court not to after judgement. - Save as otherwise provided by

this Code or by any other law for the time being in force, no Court, when it

has signed its judgment or final order disposing of a case, shall alter or

review the same except to correct a clerical or arithmetical error."

14. Therefore, regardless of the other issues involved, Section 362 of the

Code of Criminal Procedure is an absolute bar against recalling or reviewing

one's own judgment by this Court. On this, reliance is placed on the

decision of a Special Bench of the Hon'ble Supreme Court in State of Kerala

vs. M.N. Manikantan Nair, (2001) 4 SCC 752.

15. In view of the above, I do not find any merit in this application.

16. Accordingly, CRAN 1 of 2022 is dismissed.

17. However, considering the fact that the applicant is a purported victim

in this case, there shall be no order as to costs.

18. Urgent photostat certified copies of this judgment may be delivered to

the learned Advocates for the parties, if applied for, upon compliance of all

formalities.

(Jay Sengupta, J.)

SM