Even otherwise, Section 35 of the POCSO Act allows the Special Court taking cognizance of the offence to record evidence of the child after a period of thirty days from the date on which cognizance of the offence has been taken. The only rider in this regard imposed by the provision of law is that the Court must record reasons for the delay. In the present case, while allowing recording of evidence after a period of thirty days from the date of taking of cognizance, the Special Court did not record any reasons for the delay. But, the deficiency would have to be considered only as an irregularity in the light of the petitioner not raising any specific objection to the application vide exhibit 24. If the petitioner had raised objection and showed that there was any possibility of prejudice being caused to his defence, the case would have been different and perhaps, the challenge now made to the order dated 2nd March 2016 by the petitioner would have been required to be considered in the perspective of the prejudice factor. This is not the case here and, therefore, I do not think that failure of the learned Special Judge to record reasons for belated recording of the evidence of the victim has resulted in an illegality, causing prejudice to the defence of the petitioner.
{Para 7}
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Criminal Writ Petition No. 68 of 2018
Shubham Vilas Tayade, Vs The State of Maharashtra, through Police
Coram : S. B. Shukre, J
Dated : 31st January 2018
1. Heard. Rule. Rule made returnable forthwith by consent of
parties.
2. This writ petition challenges two orders passed by the Special
Court, Pusad.
3. The order dated 2nd March 2016 allowing the prosecution
application for recording of evidence of victim of crime and also the order dated 18th December 2017 allowing application of the petitioner to grant him copies of audio video recording and defer recording of evidence of the victim till that time, are the subject matter of challenge in the present writ petition.
4. Learned counsel for the petitioner submits that in view of the
provisions of Section 35 of the Protection of Children From Sexual
Offences Act, 2012, the first order dated 2nd March 2016 could not have been passed. Learned Additional Public Prosecutor submits that this order was passed after the petitioner did not take any objection worth the name to the application filed by the prosecution in that behalf and, therefore, now the petitioner accused cannot seek to challenge this order.
5. I think, learned Additional Public Prosecutor for the State is
right. To the application (exhibit 24) filed seeking permission of the
Court to allow the prosecution to examine as its witness, say of the
petitioner reads thus :
“Suitable order may kindly be passed.”
6. It is obvious that the petitioner did not resist this application
in any manner and left it to the wisdom of the Court to pass an
appropriate order. Accordingly, the Special Court allowed the application by its order passed on the same day. This order was not challenged any time thereafter by the petitioner, thereby giving up his right to take objection to the order. Therefore, now the petitioner cannot pose any challenge to this order.
7. Even otherwise, Section 35 of the POCSO Act allows the Special Court taking cognizance of the offence to record evidence of the child after a period of thirty days from the date on which cognizance of the offence has been taken. The only rider in this regard imposed by the provision of law is that the Court must record reasons for the delay. In the present case, while allowing recording of evidence after a period of thirty days from the date of taking of cognizance, the Special Court did not record any reasons for the delay. But, the deficiency would have to be considered only as an irregularity in the light of the petitioner not raising any specific objection to the application vide exhibit 24. If the petitioner
had raised objection and showed that there was any possibility of
prejudice being caused to his defence, the case would have been different and perhaps, the challenge now made to the order dated 2nd March 2016 by the petitioner would have been required to be considered in the perspective of the prejudice factor. This is not the case here and, therefore, I do not think that failure of the learned Special Judge to record reasons for belated recording of the evidence of the victim has resulted in an illegality, causing prejudice to the defence of the petitioner.
8. About the second order under challenge, I find that by this order, application of the petitioner vide exhibit 54 seeking for deferring of
the evidence of the victim child till the time he is provided with copy of audio video recording itself has been allowed by the learned Additional Sessions Judge. This being so, I do not understand why the second order has been challenged by the petitioner, for, it fulfills the wish of the petitioner expressed in his application vide exhibit 54.
9. In the result, I find no merit in this writ petition and it
deserves to be dismissed and is dismissed accordingly. However, it is
directed that the petitioner shall be given an opportunity to crossexamine the victim after copy of audiovideo recording is made available to him.
With this direction, rule is discharged.
S. B. SHUKRE, J
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