The victim of a sexual assault case was not made a witness in the charge sheet and she was also not produced in spite of writing several letters that were sent to both the Superintendent of police and D.I.G. The Court took note and cautioned the authorities of contempt of court.
Facts of the Case
A minor girl aged about 13 years, was sexually assaulted by the petitioner. He was charged for offences punishable under Section 341, 323, 376 and 511 of the Indian Penal Code, 1860 and Section 8 of The Protection of Children from Sexual Offences (POCSO) Act, 2012. The statement of the victim was recorded under Section 164 of The Code of Criminal Procedure, 1973. The petitioner had initially prayed for bail but it was rejected. However, he again filed an application before the High Court of Jharkhand, wherein the petitioner renewed his prayer for bail.
Arguments by the parties
The Counsel for the petitioner submitted that the victim, in this case, had not been examined and that the victim is also not a victim as per the charge sheet. He submitted that even after writing several letters to the Superintendent of Police and the D.I.G., the victim had not been produced and that the petitioner had been languishing in custody for three years. The Counsel also submitted that all the charge sheet witnesses had been examined in this case.
Observations of the Jharkhand High Court
On the perusal of the charge sheet, the Court observed that the Investigating Officer had not made the victim a charge sheet witness.
The Court stated,
“it is surprising that in a case which has been registered under the POCSO Act, the Investigating Officer has not made the victim a charge sheet witness.”
The Court took note of the lack of response from the Superintendent of Police and the D.I.G., in regard to the letters that were written to them by the counsel appearing for the petitioner for producing the victim. The Court stated that
“the acts of the authorities cannot be said to be bonafide” and that such acts create doubts in the mind of the Court whether “the police authority is taking the side of the accused by not producing the victim in the witness box”.
The Court held that before proceeding with the case, the Director-General of Police, Jharkhand must file a personal affidavit answering,
“1. As to why the victim was not made a charge sheet witness.
- Who is responsible for not making the victim a charge sheet witness.
- If the DGP finds that to date no responsibility has been fixed, the DGP will fix the responsibility and will furnish information to this Court and he shall also inform this Court as to what steps have been taken against those persons because of whose laches the victim has not been shown as charge sheet witness.
- Why the Superintendent of Police, Sahebganj and DIG, Dumka have not responded to the directions/letters of the Court which directs the officers to produce the victim as a court witness.
- What steps the DGP himself has taken to ensure production of the victim before the Court below pursuant to the order dated 16.01.2020 and letter dated 27.01.2020, which the court below has addressed to him for production of the victim.
- What steps DGP intends to take against the erring officials who have not produced the victim before the court so that her evidence could be recorded.
- Why not a contempt proceeding be initiated against the Investigating Officer, Officer-in-charge Mirzachouki P.S., Sahibganj, the Superintendent of Police, Sahebganj and DIG, Dumka for willfully and deliberately violating the orders of the court wherein the trial court had directed them to produce the victim as a witness.”