POCSO Case Pending Since 4 Yrs, Accused Adopting Dilatory Tactics: Madhya Pradesh High Court Directs Trial Court To Conduct Day To Day Hearing

Justice Anand Pathak observed,

"The fact situation of the case and legal position, it is imperative that trial be conducted as expeditiously as possible on day to day basis in view of Section 35(1) and (2) of POCSO Act. Any default or defiance by the accused shall be dealt with sternly by the trial Court as per the different provisions available in Cr.P.C"

Section 35 provides that evidence of the child shall be recorded within a period of thirty days of the Special Court taking cognizance of the offence and reasons for delay, if any, shall be recorded by the Special Court. Further, the trial shall be completed, as far as possible, within a period of one year from the date of taking cognizance of the offence. 

The Court also directed the SHO of the area to give protection to the prosecutrix and her family members as and when the situation requires, especially when prosecutrix and her family members attend the Court proceedings as prosecution witnesses, so that accused and other persons on his behalf may not intimidate, coerce or threaten them.

The petition was filed before the court seeking early conclusion of trial and direction to SHO to accompany the witnesses when they appear before the trial Court for deposition.

The petitioner had sought early conclusion of trial pertaining to physical and sexual exploitation of the minor prosecutrix for alleged offences under Sections 376(2)(n), 376(2)(i), 354(A)(i) (ii), 354(D), 120-B, 201 of IPC and Sections 3,4,5,6,13,14 of the Protection of Children from Sexual Offences Act, 2012 and Sections 67,67(A),67(B), 66(D),66(E) of Information Technology Act.

The documents before the courts suggested that despite lapse of almost 4 years in such a heinous crime, at present only prosecutrix could have been cross-examined by the accused and still her family members remained to be cross-examined before the Trial Court.

The petitioner said that the accused was adopting every tactics to delay the trial and to harass the petitioner/prosecutrix and her family members to give up the case and to come to his terms. Since accused was not cooperating in trial and continuously harassing the prosecutrix and her family members, therefore, application for cancellation of bail was also preferred.

"It is the fundamental right of every citizen including the complainant and victim is to get justice without any delay; whereas, respondents are causing delay and thwarting the Principle of Speedy Trial and Right to Access Justice," said the Court.

The State admitted that Fair Trial and Right to Access Justice is the fundamental right under Article 21 of the Constitution and therefore, appropriate order can be passed. Counsel appearing for the accused opposed the plea with vehemence and submitted that trial Court has sufficient means to handle the trial including Section 317 of Cr.P.C. and if the witnesses are not properly examined then it will adversely affect the prospect of respondents and it would be contrary to their fundamental rights.

After hearing both the counsels at length the court noted that the case in hand pertains to heinous offence of rape with a minor girl and making her obscene photographs/videos viral on internet. Tenor and texture of the charges indicate the seriousness of the incident. The incident took place in 2019 and till now only prosecutrix and her father have been examined before the trial Court while other material prosecution witnesses/family members of prosecutrix are left to be examined.

Court also recorded that a perusal of order-sheets of trial Court, shows that accused used to cross-examine prosecution witnesses in post lunch session or thereafter so that cross-examination could not be completed on that day and witnesses would have to visit again.

"On exhausting 13 adjournments, prosecutrix/minor girl could have been examined by the accused. Section 35(1) and (2) of POCSO Act mandates recording of statement of child/prosecutrix within one month of cognizance and conclusion of trial within one year from the date of cognizance of offence," Court said

The court also noted that recently an application for cancellation of bail of accused was preferred by the prosecutrix under Section 439(2) of Cr.P.C. The same was cancelled as the accused was not cooperating in trial.

"If any accused delays trial deliberately and does not cooperate in following the mandate of law as reflected through Section 35(1) and (2) of POCSO Act and even otherwise, then he renders himself liable for cancellation of bail and/or other stringent measures which can be adopted by the trial Court for ensuring Speedy Trial."

At the end the court relied on the judgment delivered in Hussainnara Khatoon Vs. Union of India wherein Right to Access Justice and Speedy Trial has been taken into highest esteem by the Hon'ble Supreme Court.

In view of the above, the petition was disposed of.

Case Title : The Prosecutrix Vs. State of M.P. & Ors.

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