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POCSO Act Casts Burden Of Proof Upon Accused, Application U/S 311 CrPC To Summon Material Witnesses Should Ordinarily Be Allowed: Karnataka HC
Mustafa Plumber
16 Aug 2022 8:45 AM GMT
In connection with a trial under the POCSO Act, the Karnataka High Court has said that an application made by the accused under Section 311 of the CrPC for summoning of material witnesses should be ordinarily permitted unless the Court comes to a conclusion that it is a ruse to drag the proceedings or permitting it, would become an abuse of the process of the law. A single judge bench...
In connection with a trial under the POCSO Act, the Karnataka High Court has said that an application made by the accused under Section 311 of the CrPC for summoning of material witnesses should be ordinarily permitted unless the Court comes to a conclusion that it is a ruse to drag the proceedings or permitting it, would become an abuse of the process of the law.
A single judge bench of Justice M Nagaprasanna allowed a petition filed by one Periyaswamy M and set aside the order of the trial court rejecting his application to adduce the defence witnesses.
The trial Court had said that the burden is on the prosecution to prove the case beyond all reasonable doubt and therefore, examination of the witnesses on the side of the defence does not arise.
The High Court however emphasized that since the petitioner is facing charges under provisions of the POCSO Act, the presumption is that of guilt of accused, unless the contrary is proved. Thus, it said,
"It is a reverse burden cast upon the accused under the provisions of the POCSO Act. In the teeth of the allegations under the POCSO Act, the concerned Court could not have rejected the application for adducing defence evidence on the specious plea that the burden is on the prosecution to prove the case beyond all reasonable doubt...The accused who is facing charges that are grave ought to be afforded opportunity to defend himself within the parameters of law."
Considering the purport and spirit of Section 311, the bench added that the power of the Court is wide and may be exercised at any stage of any inquiry, trial but must be used with caution and circumspection.
"Fair trial is the soul of criminal procedure and it is the duty of the Courts to ensure fairness and it is not hampered or threatened at any stage of the proceedings. It is trite that fair trial includes affording of fair opportunity to the person concerned albeit the prosecution or the accused as the aim and object of every Court is to discover the truth. Section 311 of the Cr.P.C. is one of many such provisions, which strengthens the arms of the Court to unearth the truth by procedure sanctioned by the law. This is the soul of the provision."
Case Title: PERIYASWAMY M v. STATE OF KARNATAKA
Case No: CRIMINAL PETITION NO. 6288 OF 2022
Citation: 2022 LiveLaw (Kar) 319
Date of Order: 20TH DAY OF JULY, 2022
Appearance: Advocate SATHISH C for petitioner; HCGP K.P.YASHODHA for respondent
