Special Criminal Petition filed under Section 482 Cr.P.C. to quash order discharging victim evidence due to non-appearance. Court allowed petition and directed trial court to fix date for video conferencing.
Criminal Petition allowed, impugned order quashed, direction to fix date for recording evidence via video conferencing.
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CRL.P No.2470 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 2470 OF 2022
BETWEEN:
AMITANSHU GHOSH S/O LATE KAJAL KUMAR GHOSH AGED ABOUT 21 YEARS R/AT FLAT NO.G1104 TOWER-3, DAFFODILS BLOCK ADARSH PALM RETREAT DEVARABISANAHALLI, BELLANDUR BENGALURU – 560 103 PRESENTLY RESIDING AT APENNIJNENWEG 4, 4041 TILBURG, NETHERLANDS.
…PETITIONER
(BY SRI AIYAPPA K.G., ADVOCATE)
AND:
Digitally signed by PADMAVATHI B K Location: HIGH COURT OF KARNATAKA
R/AT FLAT NO.G1104, TOWER-3, DAFFODILS BLOCK ADARSH PALM RETREAT DEVARABISANAHALLI BELLANDUR BENGALURU – 560 103.
CRL.P No.2470 of 2022
…RESPONDENTS
SMT.K.P.YASHODHA, HCGP FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO a. SET ASIDE THE ORDER DATED 03.01.2022 PASSED BY THE ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, FTSC-1, (POCSO COURT), BENGALURU IN SPL.C.C.NO.416/2019, THEREBY DISCHARGING THE EVIDENCE OF PETITIONER AND ETC.,
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court seeking to quash the order dated 3-01-2022 passed by the learned Additional City Civil and Sessions Judge, Fast Track Sessions Court-1,
CRL.P No.2470 of 2022
Bengaluru in Spl.C.C.No.416/2019, by which the victim is discharged from giving evidence.
The petitioner’s mother subsequent to her divorce was in a live-in relationship with the 1st respondent/accused from the year 2009. The petitioner in the month of November, 2014 comes back from the boarding school to live with his mother and respondent No.1/accused. At that point in time, respondent No.1/accused had committed heinous acts of sexual assault on the petitioner and the same continued for a prolonged period until 2016. The petitioner claims to have become mentally scarred of sexual assault by the accused, but did not disclose the incident to his mother. Later, the petitioner appears to have sought professional help from a psychiatrist and consequently on 11-11-2017 after undergoing the aforesaid trauma
CRL.P No.2470 of 2022
approaches the jurisdictional police and registers a complaint
which led to registration of crime in Crime No.514 of 2017.
CRL.P No.2470 of 2022
evidence by order dated 3-01-2022. The order dated 3-01-
2022 reads as follows:
“Case called. Accused absent. E.P filed. The previous order sheet dated 2-12-2019, 17-12-2020, 11-01-2021, 16-10-2021, 26-07-2021 shows that already this Court had issued summons against CW-1 i.e., the victim who is said to be residing at Netherlands with due process of law so as to record his evidence through VC. In spite of this, victim seems not cooperating with the police so as to record his evidence through VC. As this case is of the year 2019 and in view of Section 35 of the POCSO Act evidence of the victim has to be recorded within 30 days from the date of taking cognizance. In the present case the conduct of victim and his mother who is residing at Marathahalli, Bengaluru shows that they are not cooperating with the police. In view of this I hold question of issuing NBW and proclamation does not arise as international treaty will come in between and same will delay the trial. In view of this evidence of victim is hereby discharged.”
It is this order that is called in question in the subject petition.
direct recording of evidence through video conferencing. The learned counsel has also placed a notification dated 9-06-2020,
CRL.P No.2470 of 2022
issued by this Court, with regard to tendering of evidence by way of video conferencing and submits that if one opportunity is given to the petitioner, he would tender his evidence and cooperate with the prosecution for continuation of further proceedings.
CRL.P No.2470 of 2022
of evidence of the petitioner through video conferencing and continue with the trial failing which, in the considered view of this Court, the allegations made by the petitioner against the respondent No.1/accused would go uncorroborated.
O R D E R
Sd/JUDGE
BKP
2 issues framed by the court
Whether the High Court can quash the order discharging the victim evidence due to non-appearance and fix a date for recording via video conferencing.
Whether Section 35 of the POCSO Act mandating recording of evidence within 30 days precludes recording via video conferencing from abroad.
2 provisions across 2 enactments
AMITANSHU GHOSH
WILLIAM ANOOP NICODEMUS
STATE OF KARNATAKA
M. NAGAPRASANNA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
