Partly allowed

Avinash Ganesh Kulkarni v. State of Maharashtra and Anr.

Bombay HC17 Mar 2023WP/481/2023

Case brief

AI extract

What is this about?

The High Court partially set aside an order rejecting a cross-examination application under the POCSO Act. It directed the Special Judge to record evidence from accused witnesses with virtual court facilities for the petitioner to ensure a fair trial, avoiding re-victimization of the victim while exercising Article 21 rights.

What did the court decide?

Summons issued for PW 1 and PW 2; PW 1's examination re-recorded; PW 2 to be cross-examined on V.C. with petitioner present; trial to conclude within six months.

Avinash Ganesh Kulkarni Vs State of Maharashtra… — Child Sexual Offences (POCSO) | Bombay HC (2023)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO.481 OF 2023

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Avinash Ganesh Kulkarni

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.. Petitioner

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Versus

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The State of Maharashtra & Anr. .. Respondents

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Mr.Kuldeep Patil i/b Mr.Prashant Hagare for the Petitioner. Ms.P.N.Dabholkar, A.P.P. for the State.

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Ms.Manisha Devkar for the Respondent No.2.

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CORAM: BHARATI DANGRE, J. DATED : 17^th MARCH, 2023

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P.C:-

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Heard the learned counsel for the petitioner, learned A.P.P. for the State and the learned counsel for the respondent No.2

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The petition assails an order passed by the learned Special Judge under the POCSO Act on 11/01/2023, rejecting an application fled by the petitioner vide Exh.41 in Special Child Case No.474 of 2018, wherein he is facing charge under the POCSO Act.

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The petitioner is being tried for the offences punishable under Sections 376(2)(n), 506 of IPC and Sections 3, 4, 6 and

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M.M.Salgaonkar

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8 of POCSO Act, upon complaint fled by respondent No.2. Immediately after the incident took place, he was arrested and has presently undergone imprisonment of 5 years as a undertrial prisoner. The roznama in the trial is annexed alongwith the petitioner and the grievance of the petitioner revolve around the examination of two witnesses i.e. the complainant (PW 1) and the victim (PW 2). As per the petitioner, PW 1 was present in the Court on 23/12/2019 and her examination-inchief was recorded, though the petitioner was not produced. The Public Prosecutor and the Advocate for the petitioner were present in the Court and after the examination-in-chief commenced, an application was moved for seeking an adjournment, which was granted. Thereafter, the matter was taken up on 08/01/2020, 24/01/2020 and 07/02/2020, when the petitioner was not produced. On 27/02/2020, Advocate for the petitioner was not present and even the petitioner was not produced, but the learned Judge proceeded with the examination-in-chief of PW 1 and passed a ‘no-cross’ order.

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A grievance is also made in respect of recording of examination-in-chief of PW 2, the victim herself on 19/11/2021. When the attention of the learned counsel Mr.patil is invited to the roznama dated 19/11/2021, wherein it is recorded as, “Accused is in jail and produced on V.C.”, the submission of the learned counsel is, the petitioner was produced only for two minutes and was not on V.C., while PW 2-the victim was being examined. However, this statement is not supported by any evidence or proof thereof and, therefore, I deem it appropriate to go by the roznama, which has clearly

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M.M.Salgaonkar

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recorded that when the victim was examined, the petitioner was in jail and he was produced on V.C.

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Though the learned counsel Mr.Patil would makes a serious grievance that all of a sudden PW 2 was issued summons to examine, it is without any substance, as on the date on which PW 2 was being examined, the petitioner was produced on V.C. However, what can be seen from the proceedings is, an opportunity to cross-examine these two witnesses is not made available to the petitioner and this may prejudice him.

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Though Mr.Patil would make an earnest request for recalling PW 2 for recording her examination-in-chief, I am not inclined to grant such a request as once again recalling her for examination-in-chief would amount to her re-victimization, which is necessarily has to be avoided, particularly when, she is a young girl.

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At the same time, since a fair trial is a right of the petitioner under Article 21 and every opportunity must be afforded to him, which include an opportunity to crossexamine the witnesses, I deem at appropriate to permit crossexamination of PW 2 by the Advocate for the petitioner, in presence of the petitioner, either on being produced physically or on V.C., by ensuring that through out the crossexamination, his presence shall be secured.

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As far as PW 1 is concerned, since the examination-inchief is recorded in absence of the petitioner and his counsel, I deem it appropriate that PW 1 shall be re-examined and an

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M.M.Salgaonkar

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opportunity shall be afforded to the petitioner to crossexamine her.

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At present, the trial is stayed and barring PW 1 and PW 2, no witnesses are examined. Needless to state that the stay to the trial is detrimental to the petitioner himself and, therefore, by partly setting aside the order dated 11/01/2023 by the learned Special Judge under the POCSO Act, the following order is passed.

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: ORDER :

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(a) The learned Special Judge, Pune shall issue summons to PW 1 and PW 2 for the purpose of recording their evidence and summons will indicate a date which shall not be latter than two weeks from today;

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(b) On the given date, the examination-in-chief of PW 1 shall be recorded and the counsel for the petitioner shall be given an opportunity to cross-examine her;

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(c) Either on the same date or on the next date, the counsel for the petitioner shall be permitted to crossexamine PW 2, by ensuring all necessary precautions that are prescribed under the provisions of POCSO Act;

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(d) The examination of PW 1 as well as crossexamination of PW 2 shall be concluded by the learned Judge, by giving precedence to the said trial over other pending matters and in no case shall be adjourned on the given date;

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(e) The learned Special Judge shall ensure that the counsel for the petitioner do not seek any adjournment on any count, on the given date;

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M.M.Salgaonkar

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(f) The petitioner, during the examination/crossexamination of the aforesaid witnesses, shall either be produced in person or shall be provided V.C. facility, which would be treated as good as his presence in the Court;

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(g) Upon recording the evidence as aforesaid, the learned Special Judge shall expeditiously conclude the trial within a period of six months.

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The writ petition stands disposed off in the aforestated terms.

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( SMT. BHARATI DANGRE, J.)

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M.M.Salgaonkar

Avinash Ganesh Kulkarni v. State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Avinash Ganesh Kulkarni v. State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

Parties & counsel

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