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1. CASE TITLE – Sunita Devi v. The State of Bihar & ANR.

CASE NUMBER – Criminal Appeal No. 3924 of 2023 & Criminal Appeal Nos. 3926 – 3927 of 2023

DATED ON – 17.05.2024

QUORUM – Justice M.M. Sundresh & Justice S.V.N Bhatti

FACTS OF THE CASE

An FIR was registered in Crime No. 137 of 2021 for the occurrence that took place on 01.12.2021. The said complaint was filed by the mother of the victim on 02.12.2021. Accordingly, the case was registered under Section 376AB of the Indian Penal Code, 1860 (hereinafter referred to as the “IPC, 1860”) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the “POCSO Act, 2012”). The case of the prosecution in a nutshell is that the accused took advantage of a minor girl child and committed the offence of rape. The accused was arrested on 12.12.2021. He was produced before the concerned Judicial Magistrate on 13.12.2021 and remanded to judicial custody till 24.12.2021. On 12.01.2022, the charge-sheet was filed for the offences aforestated. The accused was produced through video conferencing on 15.01.2022. There was no advocate representing the accused, and the case was put up on 24.01.2022 for his production. On 20.01.2022, without the FSL report, the charge-sheet filed was taken on record. The prosecutor was directed to ensure the presence of the accused through video conferencing. The accused feigned his inability to engage a lawyer as he was behind bars. The case was adjourned to 22.01.2022 for framing of charges and for the supply of documents. On that day i.e. 22.01.2022, the counsel appearing for the accused was provided with the documents, without being given any time and without ensuring that these documents were in fact shown to the accused, followed by due consultation with his lawyer, directly arguments were heard on framing of charges. Thereafter, the charges were framed and explained to the accused through the virtual mode. On the very same date, an order was passed for summoning the prosecution witnesses. Strangely enough, an application was filed by the Investigating Officer to record the evidence of four witnesses in a single day, as a confidential information obtained, indicated that there was pressure from the family members of the accused. No notice was served either on the accused or his counsel, and the order was passed, without taking into consideration the Witness Protection Scheme, 2018. In disregard of the provisions of the Rules for Video Conferencing for Courts, 2020, the statements of the witnesses were recorded. After two days i.e. 24.01.2022, the remaining witnesses, including the Investigating Officer, were examined. There was no material to show that the accused was present at that point of time. To question under Section 313 of the CrPC, 1973 alone, the accused was brought through video conferencing. The repeated plea of adjournment by one week made by the counsel for the defence was once again rejected, while ultimately facilitating a day’s adjournment.

Two days thereafter i.e. 27.01.2022, the case was posted for sentencing. Upon hearing the accused, the death sentence was imposed by the trial court. The High Court, by the impugned judgment, called for the records and went through them thoroughly, finding that there is non-compliance of Sections 207, 226, 227 and 230 of the CrPC, 1973, set aside the conviction and sentence awarded by the trial Court, and ordered for a de novo trial. Incidentally, the approach adopted by the Trial Court was found faulty. Assailing the impugned judgment on merit, the informant has filed Criminal Appeal No. 3924 of 2023. Aggrieved over the observations made by the High Court, the learned Trial Judge has filed Criminal Appeal Nos. 3926-3927 of 2023.

LEGAL PROVISIONS

The Protection of Children from Sexual Offences Act (POCSO Act), 2012, enacted to address child abuse and exploitation.

The Rules for Video Conferencing of Courts, 2020, enacted by India’s Supreme Court, established a framework for conducting court hearings virtually.

The Witness Protection Scheme, 2018, enacted to shield witnesses from intimidation and threats, ensuring they can testify freely in court.

 

CONTENTIONS MADE BY THE APPELLANT

The Learned Senior Counsel appearing for both the informant and the learned Trial Judge, submitted that the procedure established by law has been followed. The appellant has kept in mind the rigor of Section 309 of the CrPC, 1973 read with the provisions contained under the POCSO Act, 2012. Even assuming that there was a procedural flaw, given the mandate contained under Section 465 of the CrPC, 1973 he argued that there was no need for remittal. The Learned Senior Counsel further submitted that the appellant has discharged his judicial function and, therefore, any action without hearing him is contrary to law. Though the charges had been dropped, the observations made would be detrimental to his future career progression. The accused had antecedents and, therefore, the Trial Court rightly exercised due caution and mentioned that it was a case where no witness was produced on behalf of the defence.

CONTENTIONS BY THE RESPONDENT

The Learned Senior counsel appearing for the High Court and the accused submitted that admittedly there were serious procedural violations. Prejudice was sufficiently demonstrated before the court and stated that it would be impossible for a Judge to deliver the judgment within such a short span of time and no opportunity was given at every stage of the trial to the accused. The Learned Senior Counsel further stated that it was a clear case of  “justice hurried is justice buried”. And that there is no question of giving an opportunity to the appellant, the judicial officer, as no action is pending against him.

COURT ANALYSIS AND JUDGEMENT

The Hon’ble Supreme Court found that the High Court, while passing both the impugned judgments, had not only called for the records and rendered findings of fact, but has also considered them in detail. At every stage, the accused was denied due opportunity to defend himself and was also of the notion that the appellant judicial officer was obviously acting in utmost haste. They noticed that at every stage, including framing of charges, there was a constant denial of due opportunity and hearing. The accused was not able to consult his lawyer. He was not even served with the copies, though his lawyer received the same before framing of the charges. The held that receiving of documents by his lawyer would not be sufficient compliance, unless there was sufficient time given for him to peruse them and thereafter have a consultation and also noted that neither the provisions of the Witness Protection Scheme, 2018 have been invoked nor the Rules for Video Conferencing for Courts, 2020 were followed. And also said that regarding the application filed seeking intervention over the action taken on the administrative side, it is for the appellant to approach the High Court. The present appeals were then dismissed by the Hon’ble Supreme Court and also gave instructions for the Trial Court to go over the case again while keeping in mind the POCSO Act, 2012 while recording the evidence of the victim.

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Judgement Reviewed by – Gnaneswarran Beemarao

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