Updated: November 10, 2018 7:01:47 am
The Supreme Court has pulled up the Gujarat High Court for assuming the “function of a trial court” while deciding on a bail application, and for disclosing the victim’s identity in a case of sexual assault on a minor under the Protection of Children from Sexual Offences (POCSO) Act.
The Gujarat High Court (HC) had ordered lie-detector, brain-mapping and narco analysis tests on the accused person for deciding the bail application.
\According to HC records, the accused was termed “innocent” based on conclusion of the tests and was subsequently granted bail. Justice J B Paridawala of Gujarat HC had ordered that the same tests be conducted on the victim’s family members to make the “picture more clear”.
In its order passed in April this year, the Gujarat HC said: “…If any of the three (victim’s family members) offer any resistance in this regard, then the same by itself will be an indication of their guilty conscience.”
The family appealed in Supreme Court against the order. The appellant’s lawyer, Shahrukh Alam, submitted that the HC order was in “clear violation” of settled principles of criminal law jurisprudence by allowing several tests. In its order, passed on October 29, the bench of Justices N V Ramana and Mohan S Shantanagoudar called it “surprising” to note the approach adopted by Gujarat HC.
The top court observed: “The court must not undertake meticulous examination of evidence collected by the police, or rather order specific tests, as done in the present case. By ordering the tests and venturing into the reports [of these tests] with meticulous details, the High Court has converted the adjudication of a bail matter to that of a mini-trial. This assumption of the function of a trial court by the High Court is deprecated.”
The SC also said that the Gujarat HC stood in “clear violation” of the precedents set by the apex court and “statutory prescriptions” by disclosing the victim’s name in the order.
In its order, the SC said, “(The POCSO Act) casts a duty on the special court to ensure that identity of the victim is not disclosed at any time during the course of investigation or trial. Thus, taking note of the violation…the conversion of adjudication of bail application to a mini-trial and disclosure of identity of the ‘victim’, we disapprove the manner in which the HC has adjudicated the bail application and, accordingly, quash the order.”
The SC also said it was “constrained” to observe the “lethargic attitude of the State” by not taking necessary steps in bringing the matter to the apex court’s notice by filing an appeal. “The present Special Leave Petition was filed by the grandmother of the victim and it is only on her behest that we took notice of the matter,” the bench said.
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