Allowed

Meera Devi v. State of U.P. and Anr.

Allahabad HC14 Jan 2020A482/813/2020

Case brief

AI extract

What is this about?

This case under Section 482 Cr.P.C. seeks quashing of an order rejecting the prosecution’s application to examine a school principal to prove the victim's high school certificate. The High Court set aside the impugned order, allowing the prosecution to examine the witness as the victim's age under the POCSO Act was the crux of the case, ruling it was not a lacuna. The order was allowed with direct

What did the court decide?

The impugned order rejecting the prosecution's application to examine the school principal was set aside. The application under Section 482 Cr.P.C. was allowed with directions to summon the witness wi

Meera Devi Vs State of U.P. and Anr. — Child Sexual Offences (POCSO) | Allahabad HC (2020)

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Court No. - 66

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Case :- APPLICATION U/S 482 No. - 813 of 2020

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Applicant :- Meera Devi Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Amit Kumar Singh Counsel for Opposite Party :- G.A.,Ajay Kumar Upadhyay

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Hon'ble Rajul Bhargava,J.

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Heard Sri Amit Kumar Singh, learned counsel for the applicant, Sri Ajay Kumar Upadhyay, counsel for the opposite party no. 2 and learned AGA.

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The present application u/s 482 Cr.P.C. has been filed for quashing the impugned order dated 28.11.2019 passed by 5th Additional Session Judge/ Special Judge (POCSO Act) Basti in S.S.T. no. 4 of 2016 arising out of Case Crime no. 680 of 2015, u/s 376(2) IPC and 5/6 POCSO Act, P.S. Harraiya, District Basti.

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Brief background leading to the filing of the present application is that in the aforesaid session trial an application was moved by the Special Public Prosecution, POCSO Act on 20.11.2019. While preparing final argument it came to know that inadvertently high school certificate of the prosecutrix has not been proved and therefore paper no. 4ka/32 which is already on record, which is photostat copy of the high school marksheet of the victim has to be duly proved by producing Principal of the school where the prosecutrix had pursued her studies and passed high school.

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I may record that the trial has reached at defence stage and an application was thus moved on behalf of the defence also for producing defence witnesses; the trial court while rejecting the application u/s 311 Cr.P.C. for examining Principal of the school to prove high school certificate vide same impugned order has allowed the defence to lead its evidence. The said application was rejected by the trial court on the ground that it would be amount to filling up lacuna by the prosecution. Learned counsel has argued that infact the I.O. had collected only photostat copy of the high school certificate and same is on record, however unless the Principal of the school where the prosecutrix studied is examined as witness it will cause serious prejudice to the prosecution as the prosecutrix was less than 18 years of age on the date of incident and even otherwise exercise of power u/s 311 Cr.P.C. in such a case will not amount to filling up lacuna of prosecution case as examination of

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Principal is essential for the just decision of the case.

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Per contra learned counsel for the opposite party no. 2 vehemently opposed the prayer for examining the Principal of the school on the ground that case is now fixed for argument though the argument has not started as yet and this would amount to filling of lacuna which cannot be done at this stage especially when the accused opposite party no. 2 is languishing in jail for the past several years.

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After hearing rival submissions and considering the legal arguments raised by both the parties, besides expressing any opinion on the merits of the case, as in the present case the high school certificate of the prosecutrix by which her age to be determined and the entire case for making out an offence under the POCSO Act hinges on the very age of the prosecutrix, I deem it fit to allow the prosecution to adduce the Principal or any other person with relevant record to prove the date of birth of the victim from the school certificate where she passed high school. I am of the considered opinion that this will not amount to fulfilling of any lacunae by the prosecution.

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I am conscious of the fact that the power under Section 311 Cr.P.C. when the case is fixed for final argument must be exercised with care and caution, however, recording of evidence of the Principal or the concerned person to prove the high school certificate of the victim is absolutely necessary, therefore, the impugned order to the extent of rejecting the application of the prosecution to examine Principal under Section 311 Cr.P.C. is hereby set-aside.

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The Public Prosecutor shall move an application for summoning the Principal or the relevant witnesses to prove the high school certificate or the relevant records within ten days' from the date of production of certified copy of the order whereupon the court will fix a date and the prosecution shall ensure that the witnesses are present on that date and the case will not be adjourned unless there are compelling circumstances on account of which the prosecution is unable to examine those witnesses but a very short date shall be given for the said purpose.

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In the light of aforesaid, the impugned order is partly set-aside.

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The present application under Section 482 Cr.P.C. is, accordingly, allowed with the aforesaid directions.

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Order Date :- 14.1.2020 Dhirendra/

Meera Devi v. State of U.P. and Anr.

Case brief

What is this about?

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Meera Devi v. State of U.P. and Anr.

Case brief

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