Thursday, March 7, 2024

Supreme Court upholds Patna High Court Order against Order of POCSO Judge, Araria under the Protection of Children from Sexual Offences (POCSO) Act

In Bablu Yadav v. State of Bihar, Supreme Court's bench of Justices Abhay K. Oka and Ujjal Bhuyan passed its judgement on March 1, 2024 in an appeal which arose out of final judgment and order dated April 3, 2023 passed by the Patna High Court in Criminal Appeal (Division Bench) No. 196/2022. 

The appellant had filed his appeal on July 3, 2023. The High Court's bench of Justices A.M. Badar and Sandeep Kumar had concluded that "the accused was not awarded fair trial." It observed, "The manner in which the trial was commenced, conducted and concluded by the learned trial court clearly displays and demonstrates glaring abuse of prescribed procedure of conducting the criminal trial and, therefore, there is no alternative but to direct for De-novo trial of the accused from before the stage of framing of the charge as breach of mandatory provisions of law commenced before framing of the charge causing miscarriage of justice." The High Court's order reads: "I. The impugned Judgment and Order dated 15.12.2021 passed by the learned trial court, i.e., Special Judge, POCSO, Araria in Special POCSO Case No.36 of 2021 between the parties is quashed and set aside. II. The instant Criminal Appeal filed by the accused is partly allowed to the extent indicated herein before. III. Since the trial is vitiated, the matter is remanded to the learned trial court for fresh trial from before the stage of framing of the charge." The order was authored by Justice A.M. Badar.

In its order, Supreme Court has "approved the approach adopted by the High Court." It observed that as far as the conduct of the trial is concerned, the Special Court, pursuant to remand, will have to follow the Code of Criminal Procedure, 1973 (Cr.PC) in its true letter and spirit. The Special Court will have to go by the provisions of Section 309 of the Cr.PC and the other provisions which follow Section 309 in Chapter XXIV of the Cr.PC. It directed the second respondent and the Prosecutor appointed by it to appear before the Special Court on March 15 March, 2024 at 10:30 a.m. 

The Court's direction reads: "On 15th March, 2024, the Special Court shall fix a date for recording of evidence and shall also pass an order of issue of summons to the witnesses, if required, and proceed with the trial as indicated above by following the provisions of Chapter XXIV of the Cr.PC in its true letter and spirit. On the aforesaid date, the Special Court will also grant time of only one week to the second respondent to appoint an Advocate of his choice." On his failure to do so, the Advocate, who was already appointed to espouse the cause of the second respondent, will continue to represent the second respondent. The direction issued vide order dated 6th November, 2023 to the State Government to provide adequate Police protection to the appellant, witnesses in the case, the members of the family of the appellant and the Prosecutrix, will continue to operate till the disposal of the trial. The Appeal has been disposed of.

The appellant had filed an appeal challenging the order passed by Patna High Court and the Special Judge, Araria in the case under Protection of Children from Sexual Offences (POCSO) Act, 2012. The Araria Court had convicted him of the offences. The High Court ordered for de novo trial as the Trial Court failed to follow the due process of law, principles of natural justice and the mandatory statutory provisions under the Cr.P.C.The The appellant had enticed the a 8-year-old victim child. He took her to the shop and then to the ‘Bagaan’. After committing penetrative sexual assault on her, he had absconded. In its judgment, Patna High Court had observed, “In the result, there is no alternative but to hold that the learned trial court has failed to follow due process of law while convicting the accused and imposing him the sentence as indicated in the opening paragraph of this Judgment."


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