Dharmendra Suman & Ors. @APPELLANT@Hash State Of Rajasthan

The petitioner has moved this second bail application. The first bail application was dismissed by the Court and petitioner was permitted to move

fresh bail application after recording of the statement of the prosecutrix.

F.I.R. No.166/2017 was registered at Police Station Sangod, District Kota for offence under Sections 450, 376 I.P.C. and Section 3/4 POCSO Act,

2012.

From perusal of the order-sheets it is revealed that Special Judge, POCSO Cases returned prosecutrix a minor victim of rape twice for summoning

the Medical Officer or Investigating Officer to identify the prosecutrix and on third occasion her statement was recorded after she was identified by

the Medical Officer.

Learned Public Prosecutor has contended that in State vs. Hate Singh (S.B.Criminal Reference No.1/2015) decided on 16.9.2015 High Court has

issued directions to all Courts that in cases relating to Sections 376 and 354 IPC statement of prosecutrix should be recorded by the Courts only after

due certification by the Medical Doctor concerned, who has examined the prosecutrix, or the Investigating Officer concerned.

It is contended by learned Public Prosecutor that due to the above directions given by the High Court in many cases statement of prosecutrix is not

being recorded as Doctors or Investigating Officers are not always available on the date on which the prosecutrix is summoned.

Returning of a rape victim and more particularly a child victim has shocked the conscience of this Court hence this Court deems it necessary to deal

with the issue pertaining to recording of statement of prosecutrix.

In the present case victim is a minor and the offence would, therefore, fall under the Protection of Children from Sexual Offences Act, 2012

(hereinafter to be referred as “the Actâ€​). The Protection of Children Sexual Offences Act, 2012 was enacted to protect the children from

offence of sexual assault, sexual harassment and pornography and to provide for establishment of Special Courts for trial of such offences and for

matters connected or incidental thereto.

Protection of Children from Sexual Offences Act, 2012 being a special legislation dealing with offences of sexual assault, sexual harassment and

pornography, would prevail over other Acts. Section 42-A of the Act makes a provision for this and the same reads as under:

“42A. Act not in derogation of any other law.-The provision of this Act shall be in addition to and not in derogation of the provisions of any other

law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such

law to the extent of the inconsistency.â€​

Chapter-VIII of the Act deals with the procedure and powers of Special Court and recording of evidence.

(a) Sub-section (4) of Section 33 of the Act provides for creating a child-friendly atmosphere by allowing a family member, a guardian, a friend or a

relative, in whom the child has trust or confidence, to be present in the court.

(b) Sub-section (5) of Section 33 of the Act specifically provides that the Special Court shall ensure that the child is not called repeatedly to testify in

the Court.

Section 35 of the Act further makes a provision that the 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.

In State vs. Hate Singh (supra) Court was dealing with a rape case where a lady impersonated herself as the victim and turned hostile before the

Court. In that case when the prosecutrix approached the Court stating that she has not appeared before the trial Court. The High Court ordered for

re-trail. The Court in order to stop impersonation directed the Courts below to call the Medical Officer or the Investigating Officer concerned to

identify the prosecutrix before recording of her statement.

Present case before the Court is a case under the Protection of Children from Sexual Offences Act and since there is a specific provision that

statement of the child is to be recorded in presence of her relatives. Chances of impersonation of a child victim is not possible. Further returning a

child for want of certification makes redundant sub-section (5) of Section 33 which bars calling a child repeatedly to testify in Court and Section 35 of

the Act which provides a time span for recording of statement of child. The directions given in State Vs. Hate Singh (supra) cannot thus be applied by

the Courts below to return a child victim as that would tantamount to violation of the Act. A direction, therefore, needs to be given to the Court dealing

with POCSO cases to restrain them from returning a child for want of certification by Medical Officer or Investigating Officer.

Though, this Court is not ceased with a case under Section 376 or 354 IPC but this Court feels that the directions given by the Court in Hate Singh

case (supra) to stop impersonation is causing injustice to all the stake-holder. If a rape victim or a victim of offence of outraging modesty is returned

on account of absence of the Medical Officer or Investigating Officer it causes injustice to the victim as she is required to come again to testify before

the Court. It causes injustice to the accused as his trial is protracted. Calling the Medical Officer only for purpose of certification has an impact on the

medical facilities and calling the Investigating Officer has implication on the investigation front. Further returning a witness may afford opportunity to

the accused to win over the witness

This Court, thereofre, is of the view that it should be left to the Public Prosecutor to satisfy himself that the prosecutrix appearing before the Court

to depose is a genuine witness. Public Prosecutor may from his own source or on the basis of other identification proof which may include Driving

Licence, Passport, Aadhar Card, Voter ID Card, PAN card etc. ensure that the witness is genuine.

Returning a rape victim, a victim of outraging modesty and more particularly a child is a blot on the judicial system which cannot be permitted.

Copy of this order be sent to Registrar General for seeking permission of Hon’ble Chief Justice for circulating copy of this order to all the

Sessions Judges of Rajasthan and judges dealing with POCSO cases. Sessions Judges shall circulate copy of this order to all the Judicial Officers

under his jurisdiction for necessary compliance.

Reverting back to the present case, statement of prosecutrix has been recorded on the third occasion. She has reiterated the factum of rape being

committed by the petitioner and merely because there are minor contradictions, her statement cannot be discarded.

Hence, I am not inclined to allow the second bail application.

The second bail application is accordingly rejected.