Deepak Danu vs State Of Uttarakhand And Another
2022 Latest Caselaw 3311 UK

 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.

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

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

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 the accused.

She would submit that earlier charges were collectively

framed in terms of the victims. Therefore, the strategy of

the defence was distinct. But now, it is argued that

charges are differently framed with regard to each of the

victims, therefore, further cross-examination is

necessary. It is also argued that earlier, the counsel was

different. Now, it has been realised that certain more

questions ought to have been asked in cross-

examination of PW1 and PW2. Therefore, further cross-

examination of PW1 and PW2 is necessary. In support of

her contention, learned counsel for the accused would

also refer to the provisions of Section 217 of the Code of

Criminal Procedure, 1973 ("the Code") and has referred

to the judgment in the case of Sonia Vs. State of

Haryana and others, Criminal Revision No.3303 of 2013

(O & M).

9. In fact, in the case of Sonia (supra), no

principle of law, as such, has been laid down. In that

case, the Hon'ble High Court of Punjab and Haryana has

observed that while declining re-examination of a

witness, the Court did not record any finding that the

purpose of re-examination of the witnesses is for the

purpose of vexation or delay or for defeating the ends of

justice. Such order was not upheld.

10. Learned counsel for the accused would also

submit that there is no documentary evidence to prove

that the accused was Manager of the residential school.

Therefore, there is no occasion to frame charge under

Section 9 of the POCSO Act instead of Section 8 of the

POCSO Act.

11. Undoubtedly, if charges are modified and

distinct charges are leveled, an accused has a right to

further cross-examine the witnesses, who have already

been examined. In fact, right to fair trial includes right to

fair opportunity of defence. Reference has been made to

Section 217 of the Code. It reads as hereunder:

"217. Recall of witnesses when charge altered.-- Whenever a charge is altered or added to by the Court

after the commencement of the trial, the prosecutor and the accused shall be allowed--

(a) to recall or re-summon, and examine with reference to such alteratio n or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends of justice;

(b) also to call any further witness whom the Court may think to be material."

12. In each case, where charge is altered or

added, it does not give an absolute right to the accused

to seek further examination of the witnesses already

examined. At the general rule, if a charge is altered or

added, the prosecutor and the accused are allowed to

recall or re-examine with reference to such alteration,

any witness, who has been examined. But this general

rule is subject to a rider that if the court, for the reasons

to be recorded, is of the view that the prosecutor or the

accused, as the case may be, desires to recall or re-

examine such witness for the purpose of vexation or

delay or for defeating the ends of justice, such recall or

re-examination may be denied by the Court.

13. In its objections, the accused also stated

that the revision is not maintainable but during the

course of argument, on behalf of the revisionist, it is

submitted that revision is maintainable because, if not

entertained, it would be a serious miscarriage of justice.

Learned counsel for the revisionist has placed reliance

on the principles of law, as laid down in the case of

Honnaiah T.H. Vs. State of Karnataka and others, 2022

SCC OnLine SC 1001. In Para 13 of the judgment, the

Hon'ble Supreme Court observed as hereunder:-

"13. There would be a serious miscarriage of justice in the course of the criminal trial if the statement were not to be marked as an exhibit since that forms the basis of the registration of the FIR. The order of the trial judge cannot in these circumstances be treated as merely procedural or of an interlocutory in nature since it has the potential to affect the substantive course of the prosecution. The revisional jurisdiction under Section 397 CrPC can be exercised where the interest of public justice requires interference for correction of manifest illegality or the prevention of gross miscarriage of justice. A court can exercise its revisional jurisdiction against a final order of acquittal or conviction, or an intermediate order not being interlocutory in nature. In the decision in Amar Nath v. State of Haryana, this Court explained the meaning of the term "interlocutory order" in Section 397(2) CrPC. This Court held that the expression "interlocutory order" denotes orders of a purely interim or temporary nature which do not decide or touch upon the important rights or liabilities of parties. Hence, any order which substantially affects the right of the parties cannot be said to be an "interlocutory order". Speaking for a two- Judge Bench, Justice Murtaza Fazal Ali observed:

"6. [...] It seems to us that the term "interlocutory order" in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court."

14. In fact, the Hon'ble Supreme Court also

observed in this case that, "The revisional jurisdiction

of a High Court under Section 397 read with Section

401 of the CrPC, is a discretionary jurisdiction that

can be exercised by the revisional court suo motu so

as to examine the correctness, legality or propriety

of an order recorded or passed by the trial court or

the inferior court. As the power of revision can be

exercised by the High Court even suo moto, there

can be no bar on a third party invoking the revisional

jurisdiction and inviting the attention of the High

Court that an occasion to exercise the power has

arisen."

15. In fact, during the course of argument, on

behalf of the accused, no objection has been raised with

regard to the maintainability of the revision.

16. The accused is facing trial under the

POCSO Act as well. While dealing with the present issue,

the provisions of the POCSO Act are also to be kept in

mind. The procedure and powers of special courts and

recording of evidence has been provided under Chapter

VIII of the POCSO Act. It makes various provisions with

regard to questioning the witnesses. Section 35(5) of the

POCSO Act provides that the special courts shall ensure

that the child is not called repeatedly to testify in the

court.

17. On 29.10.2021, the accused was charged

under Section 377 IPC and Section 6 of the POCSO Act.

According to the charges, being Manager of a residential

school, the accused called minor students in his hostel

room and committed the offence. Under both these

heads, the victims have been used in plural. In both

these charges, the accused has been told that the act

was done by him when he was Manager of a residential

school.

18. By the modification of the charge, what is

done is that charge under Section 377 IPC and Section 6

of the POCSO Act has been levelled with regard to each

of the victims. In fact, it is not alteration of charge. What

was collectively told to the accused has been separately

told to him.

19. PW1 is the Victim no.4 and PW2 is the

Victim No.1-D. With regard to PW1, there are charges

under Section 377 IPC and Section 6 of the POCSO Act.

20. PW2, Victim No.1-D has already been

examined and cross-examined. He has stated about the

acts done to him by the accused. He has been cross-

examined on those aspects. Therefore, merely by

separating the charge, as per the victims, does not

absolutely gives a right of further cross-examination to

the accused. In fact, if such permission is granted, it

would definitely defeat the ends of justice.

21. In so far as the further cross-examination

of the PW1 is concerned, according to the charges, which

were framed subsequently, charge no.7 relates to him. It

is with regard to sexual assault. Fact remains that no

charge of sexual assault was earlier framed on the

accused. It was framed for the first time on 20.08.2022.

22. Learned counsel for the revisionist would

argue that offence under Section 8 of the POCSO Act is a

lesser offence than Section 6 of the POCSO Act.

Therefore, it is argued that merely because charge under

Section 8 of the POCSO Act has been added, the accused

does not get a right to further cross-examine PW1. This

argument would have been accepted had the charge

under Sections 6 and 8 of the POCSO Act been framed

qua one and the same victim.

23. According to the prosecution, PW1 is a

victim of aggravated sexual assault. As stated, charge

under Section 8 of the POCSO Act was not framed,

earlier. Although, it is also a fact that PW1 was

examined and cross-examined. It is also to be noted that

PW1 has also stated that in his presence an offence of

penetrative sexual assault was done by the accused on

another child. Has he been examined with regard to an

offence under Section 6 of the POCSO Act alone or had

PW1 been also examined as a victim of an offence of

aggravated sexual assault? But, as stated, this charge

was not framed. Therefore, this Court is of the view that

definitely the accused should be afforded an opportunity

to further cross-examine PW1.

24. Insofar as framing of charge under Section

9 of the POCSO Act is concerned, fact remains that it is

the case of the prosecution that the accused was the

manager of a residential school. Section 9of the POCSO

Act defines aggravated sexual assault, which is

punishable under Section 10 of the POCSO Act.

According to Section 9(f) of the POCSO Act, if

management or a staff of an educational institution, etc.

commits sexual assault on a child in that institution, it

also amounts to aggravated offence. This is what the

prosecution case is. Therefore, definitely, the charges

under Section 9 read with 10 of the POCSO Act ought to

have been framed on the accused instead of Section 8 of

the POCSO Act. Accordingly, the revision deserves to be

partly allowed.

25. The revision is partly allowed.

26. The accused shall get an opportunity to

further cross-examine PW1 alone. He shall not get

opportunity to further cross-examine PW2.

27. The accused shall be charged under

Section 9 read with 10 of the POCSO Act in relation to

victim no.4 and victim no.5. The court below is directed

to correct the charge (head 7 & 8) framed on 20.08.2022,

accordingly.

28. The impugned order dated 20.08.2022 is

modified to the extent, as indicated above.

(Ravindra Maithani, J.) 13.10.2022 Ravi Bisht