CRM No.M-23022 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM No.M-23022 of 2010 Date of Decision:09.11.2010 Jitender ......Petitioner Versus State of Haryana .....Respondent CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.Raj Mohan Singh, Advocate, for the petitioner. Mr.Vikas Malik, Assistant Advocate General, Haryana. **** M EHINDER S INGH S ULLAR , J.(oral) The matrix of the facts, culminating in the commencement, relevant for disposal of the present petition and emanating from the record, is that the petitioner-accused, who was a Music teacher, cheated the prosecutrix and had fraudulently taken all her original documents for the purpose of submitting the examination forms in the University. When her husband was away, then the petitioner-accused entered her house, forcibly committed rape with her and took some nude photographs on his mobile. Thereafter, he started blackmailing and demanding money by giving threats. He took about one lac rupees from her and kept on threatening in this direction. Inter alia, on the basis of aforesaid allegations, the present case was registered against the petitioner-accused, vide FIR No.292 dated 04.08.2008, on accusation of having committed the offence punishable under Sections 376 and 420 IPC, by the police of Police Station Majessar, District Faridabad. 2. Having completed all the codal formalities, the charges were framed against the petitioner-accused and the case was slated for evidence of the CRM No.M-23022 of 2010 2 prosecution. Ultimately, the case was fixed for 08.06.2010. The statements of PW-DR.Narender Kaur and the prosecutrix(in camera) were recorded. The complete and full opportunity was provided to the learned defence counsel. Instead of cross-examining, he insisted for deferring the cross-examination of the prosecutrix, without any basis. The request of adjournment was declined and ultimately the case was adjourned for recording the evidence of the remaining witnesses by the trial Court vide impugned order dated 08.06.2010(Annexure P-2), which is in the following manner:- “Present: Sh.Atma Ram, PP for the State assisted by Sh.S.S.Rao, counsel for complainant. Accused on bail with Sh.V.P.Nehra, Advocate. **** One PW Dr.Narender Kaur is present and examined. Prosecutrix Smt.Anita is also present and examined in camera. Opportunity was given to the Ld. Defence counsel but he has requested for deferring cross-examination of this witness. Request for deferring of the witness considered but since it is not justified, so request is hereby declined. One PW Jitender Taneja has been given up by the Ld.Public Prosecutor being won over by the accused. PW Rajeev Kumar Sharma has not come present despite service. He be called through bailable warrant in the sum of Rs.2000/- with one surety in the like amount for 9.8.10. Remaining PWs be also summoned for that date.” 3. The petitioner-accused did not feel satisfied and filed the present petition for quashing the impugned order(Annexure P-2), invoking the provisions of Section 482 Cr.P.C. in this context. 4. After hearing the learned counsel for the parties, after going through the record with their valuable help and after considering the matter deeply, to my mind, there is no merit in the instant petition. 5. Ex facie, the argument of the learned counsel that keeping in view the nature of allegation for the commission of heinous offence of rape, the trial Court ought to have deferred the cross-examination of the prosecutrix, is not only CRM No.M-23022 of 2010 3 devoid of merit but misplaced as well. 6. As is evident from the record that there are direct allegations against the petitioner that he cheated the prosecutrix, forcibly committed rape with her, blackmailed and demanded money. What is not disputed here is that the statement of the prosecutrix was recorded in camera by the trial Court on 08.06.2010. the trial Judge provided full opportunity to the defence counsel to cross-examine the witnesses. Instead of cross-examining the prosecutrix, he insisted for adjournment without any cogent reason or reasonable cause. 7. As in rape cases, the honour of the family in general and of the victim in particular is involved, therefore, the victim of sex-crime cannot possibly be put to an embarrassment and be compelled repeatedly to appear in the Court for cross-examination. The procedure of recording the evidence in such rape cases is provided under Section 327(2) Cr.P.C., which postulates that notwithstanding anything contained in sub-section(1), the inquiry into and trial of rape or an offence under Section 376 Cr.P.C. shall be conducted in camera. While interpreting these provisions, the Hon'ble Apex Court in case State of Punjab Versus Gurmit Singh, AIR 1996 SC 1395, held as under:- “Sub-sections (2) and (3) of S.327 Cr.P.C. are in the nature of exception to the general rule of an open trial, in spite of the amendment, however, it is seen that the trial courts either are not conscious of the amendment or do not realise its importance for hardly does one come across a case where the enquiry and trial of a rape case has been conducted by the court in camera. The expression that the inquiry into and trial of rape "shall be conducted in camera" as occurring in sub-section (2) of Section 327 Cr. P.C. is not only significant but very important. It casts a duty on the Court to conduct the trial of rape cases etc. invariably "in camera". The Courts are obliged to act in furtherance of the intention expressed by the Legislature and not to ignore its mandate and must invariably take recourse to the provisions of Section 327 (2) and (3) Cr. P.C. and hold the trial of rape cases in camera. It would enable the victim of crime to be a little CRM No.M-23022 of 2010 4 comfortable and answer the questions with greater ease in not too familiar a surroundings. Trial in camera would not only be in keeping with the self-respect of the victim of crime and in tune with the legislative intent but is also likely to improve the quality of the evidence of a prosecutrix because she would not be so hesitant or bashful to depose frankly as she may be in an open court, under the gaze of public. The improved quality of her evidence would assist the courts in arriving at the truth and sifting truth from falsehood. The High Court would therefore be well advised to draw the attention of the trial courts to the amended provisions of Section 327 Cr. P.C. and to impress upon the Presiding Officers to invariably hold the trial of rape cases in camera, rather than in the open Court as envisaged by Section 327(2) Cr.P.C. when trials are held in camera, it would not be lawful for any person to print or publish any matter in relation to the proceedings in the case, except with the previous permission of the Court as envisaged by Section 327(3) Cr. P.C. This would save any further embarrassment being caused to the victim of sex crime. Wherever possible it may also be worth considering whether it would not be more desirable that the cases of sexual assaults on the females are tried by lady Judges, wherever available, so that the prosecutrix can make her statement with greater ease and assist the Courts to properly discharge their duties, without allowing the truth to be sacrificed at the altar of rigid technicalities while appreciating evidence in such cases. The Courts should, as far as possible, avoid disclosing the name of the prosecutrix in their orders to save further embarrassment to the victim of sex crime. The anonymity of the victim of the crime must be maintained as far as possible throughout.” 8. As strange as it may appear, but strictly speaking, the tendency and frequency of such defence counsel, in unnecessary making the requests for adjournment, without any reasonable cause, in order to put the prosecutrix in disadvantageous position and embarrassment, to appear again and again in the Court, have been tremendously increasing day by day, which needs to be curbed in this respect. 9. Meaning thereby, the offences under Section 376 Cr.P.C. are in the CRM No.M-23022 of 2010 5 nature of exception to the general rule of an open trial and such cases cannot be adjourned for cross-examination of the victim, without any cogent reasons. To my mind, the trial Court has recorded the valid reasons in the impugned order (Annexure P-2) in this relevant connection. 10. Therefore, to me, the trial Court has rightly declined the prayer of adjournment for cross-examination of the victim and no interference is warranted by this Court in this context, while exercising the jurisdiction under Section 482 Cr.P.C. 11. In the light of aforesaid reasons, as there is no merit, therefore, the instant petition is hereby dismissed in the obtaining circumstances of the case. 12. Needless to mention, (as urged by the learned counsel), the petitioner would be at liberty to file an application under Section 311 Cr.P.C. and the trial Court will decide the same, in accordance with law. November 09, 2010 (MEHINDER SINGH SULLAR) seema JUDGE