Orissa High Court
Victim/Informant vs State Of Orissa & Another ….. Opposite … on 27 February, 2026
Author: A.K. Mohapatra
Bench: A.K. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.96 of 2025
An application under Section 482 of the Code of Criminal Procedure, 1973
read with Section 528 of BNSS, 2023
Victim/Informant ..... Petitioner
Represented by Adv.-
M/s. Biplaba P.B. Bhalai,
Rakesh Kumar Routray
-versus-
State of Orissa & Another ..... Opposite Parties
Represented by Adv.-
Mr.D. K. Sahoo, A.G.A
(For O.P. No.1)
Mr. Kuldeep Mohanty,
A. Dash & D. Mohapatra
(For the OP No.2)
CORAM:
THE HON'BLE MR. JUSTICE A.K. MOHAPATRA
Date of Hearing : 19.01.2026 | Date of Judgment:27.02.2026
A.K. Mohapatra, J. :
1. The present CRLMC application has been filed by the
Petitioner challenging the order dated 02.09.2024 passed by the AD
HOC ADJ-FTSC POCSO-II, Cuttack, along with an additional prayer
Page 1 of 33
to direct the said AD HOC ADJ-FTSC POCSO-II, Cuttack to examine
the Victim the means of Video Conferencing (VC) in the Special G.R.
Case No.30 of 2023 corresponding to Salepur P.S. Case No.54 of 2023
which has been filed for commission of offences under Sections 363/
344/ 366/ 376(3) of the I.P.C read with Section 6 of the POCSO Act,
20212.
FACTS OF THE CASE
2. The background of the case giving rise to the present
application, is as follows; Earlier on the 16th of February 2023 at
around 5:50 pm in the afternoon, telephonic information was received
by the child-line (number 1098) form the victim, who happens to be the
daughter of the present Petitioner, that she had been kidnapped,
confined in a single room, and tortured (mentally and physically) by
the Opposite Party No.2, Dipak @ Dillip Kumar Satapathy. Later, on
the very same evening, members of the ‘Tangi Choudwar Child
Marriage Task Force Committee’ rescued the Victim from the
residence of the Opposite Party No.2. Consequently a written report of
the incident was lodged at Japakuda OP, basing upon which the F.I.R,
under Annexure-1 series, has been registered.
3. On perusal of the F.I.R and the Chargesheet at Annexure-1, it
is revealed that the statement of the Victim under sections 161 and 164
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Cr.P.C have been recorded. Although, the Victim has declined to
undergo medical examination. Further, the IO has found out during
investigation that the Victim is minor aged around 15years and 6
months during the registration of the F.I.R. Moreover, the Chargesheet
also reveals that the Victim was allegedly kidnapped by the Opposite
Party No.2 from her lawful guardianship when she was 15 years of age
by inducing her to marry him. It has also been alleged in the
Chargesheet that The OP No.2 kept repeated sexual relationship with
the victim by keeping her at his house for around a year.
4. Meanwhile, in BLAPL No.1201 of 2024 filed by the Opposite
Party No.2, a Co-ordinate Bench of this Court, vide order dated
15.05.2024, has allowed the bail application of the Accused-Opposite
Party No.2 primarily on the ground of pre-trial detention of the
Opposite Party No.2 and non-examination of the Victim. While
allowing the bail application the Hon’ble Court had also requested the
Trial Court to provide appropriate facilities for examination of the
Victim through VC mode, if such a request was made on behalf of the
Petitioner. Consequently, the Petitioner on behalf of the Victim filed a
petition under section 36(2) of POCSO Act, 2012 (hereinafter “POCSO
Act“) for recording of evidence of the minor-Victim through VC mode.
However, such application of the Victim has been rejected by the
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learned Court in seisin over the matter vide order dated 02.09.2024, at
Annexure-3 series. Aggrieved by such rejection, the Petitioner has
approached this Court under section 528 of the BNSS.
CONTENTIONS OF THE PETITIONER
5. Heard Mr.Biplaba P. B. Bahali, learned Counsel appearing for
the Petitioner. It is the Petitioner’s primary allegation that that the
Court at which the present case is proceeding is situated at a
considerable distance from the village where she resides alone with
only her minor daughter, i.e. the Victim, and no other male members. It
was further contended that given her dire financial condition, she is
unable to travel such long distances to appear before the trial court.
Additionally, the Petitioner has also alleged that the principal accused-
Opposite Party No.2, being an influential position in the area, has been
constantly threatening the Victim and her mother of dire consequences
in the event they depose against him.
6. The learned counsel for the Petitioner, elaborating his
contentions, submitted before this Court that the Petitioner and her
minor daughter, the Victim, reside alone at Adipada village in the
district of Nayagarh which is more than 120km from the trial court
where the trial is presently underway. It was further submitted that the
Petitioner is currently employed as a domestic help and is living in
Page 4 of 33
severe financial distress, rendering her entirely unable to arrange for
travel to such a distant place for recording of the evidence of her minor
daughter and herself. The learned counsel submitted that denial of
Video Conferencing facilities to the Petitioner and the Victim to record
their evidences is bound to cause grave prejudice to the parties. The
learned counsel for the Petitioner has, in support of his submission,
placed reliance on a catena of decisions of the Hon’ble Supreme Court,
including In Re: Children in Street Situations, bearing (2022) SCC
OnLine SC 189.
7. At this juncture, learned counsel for the Petitioner also placed
reliance upon the High Court of Orissa Guidelines for Recording
Evidence of Vulnerable Witnesses at Deposition Centres, 2024,
particularly Rules 3(r), 13, and 42. Inviting attention to Rule 3(r),
learned counsel submitted that the Victim in the present case falls
squarely within the definition of a “vulnerable witness”. It was further
contended that Rule 13 expressly entitles a child victim under the
POCSO Act to avail the assistance of legal counsel of her choice. In the
present case, the Victim, through her chosen counsel, has invoked the
statutory protection under Section 36(2) of the POCSO Act by filing
the petition seeking examination through virtual mode. However, the
learned trial court has rejected the said petition on grounds which,
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according to learned counsel, are untenable in law. Additionally,
drawing the attention of this Court to Rule 42 of the said Guidelines,
learned counsel argued that where a minor victim does not reside
proximate to the court conducting the trial, as in the present case, the
Guidelines cast an obligation upon the Court to ensure adherence to the
Standard Operating Procedure affirmed by the Hon’ble Supreme Court
in Children in Street Situations (supra) when the minor victim is
examined through virtual mode.
8. Next, drawing attention to the conduct of the Opposite Party
No.2, the principal accused, in hindering the Petitioner from attending
the trial court, the learned counsel for the Petitioner has vehemently
argued that the Opposite Party No.2 is an influential person in Cuttack
and has been persistently intimidating and threatening the Petitioner
and the Victim, warning them of severe consequences in the event they
depose against him. It was submitted that the threats escalated to such
an extent that the Petitioner lodged another F.I.R against the Opposite
Party No.2 bearing Lalbag P.S. Case No.204 of 2023, pending before
the learned SDJM(S), Cuttack. A copy of the aforesaid F.I.R is
available at Annexure-4 to the present CRLMC application.
9. Lastly, referring to the application under section 36(2) of the
POCSO Act, 2012 and the impugned rejection order dated 02.09.2024,
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under Annexure-3 series, the learned counsel for the Petitioner
contended that the learned trial court has unfairly rejected the aforesaid
petition primarily on the hyper-technical ground that the guardian of
the Victim, i.e. the Petitioner, has not taken any prior permission under
Section 302 Cr.P.C before filing such a petition to conduct the
deposition of the parties over VC mode. Learned counsel submitted
that the learned trial court, while rejecting the application under section
36(2) has also observed that the petition has not been filed through the
Special Public Prosecutor, that no request has been made to the Special
Public Prosecutor deputed to the Court in seisin over the matter for
filing of the said petition. As such, the learned counsel submitted that
the learned trial court has erroneously held that there is no instruction
in the High Court’s order dated 15.05.2024, under Annexure-2, to
entertain the said petition and to record the evidence of the parties
through VC mode. In such view of the matter, the learned counsel for
the Petitioner submitted that the impugned rejection order dated
02.09.2024, at Annexure-3 series, being rife with illegalities and
opposed to the spirit of the POCSO Act, be set aside and the Court in
seisin over the matter be directed to allow the examination of the
Victim and the Petitioner through VC mode as per the rules framed by
this Court.
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CONTENTION OF THE STATE-OPPOSITE PARTIES
10. Heard Mr. D. K. Sahu, AGA along with Mr.Kuldeep Mohanty
and Mr. A. Dash, learned counsel for the Opposite Party No.2. At the
very outset, the learned counsel for the State-Opposite Parties has
supported the impugned order dated 02.09.2024 passed by the trial
Court and opposed the Petitioner’s prayer on the ground that the
Petitioner has not approached this Court with clean hands. It has been
contended that the Petitioner has not been honest and has deliberately
suppressed her actual residential address while seeking the relief as
prayed for in the present petition. To bolster his contentions, the
learned counsel for the State-Opposite Parties stated that earlier on
10.09.2024, a different application bearing CRLMC No.3527 of 2024
was filed on behalf of the Victim seeking a direction from this Court
for early disposal of the case pending before the learned trial court. In
the said CRLMC application the Petitioner disclosed her residential
address as “C/o- P.C Sejapada, S/o- Rajkishore Sejapada, at Srivihar
Colony, P.O:- Tulasipur, P.S:- Bidanasi, Dist-Cuttack, Pin-753008”. It
was contended by the learned counsel for the State-Opposite Parties
that the aforesaid address is clearly inconsistent with the residential
address disclosed by the Petitioner in the petition dated 19.06.2024
filed before the trial court and in the present CRLMC application, filed
Page 8 of 33
on 03.10.2024, wherein she has stated that she resides at Nayagarh.
Learned counsel for the State-Opposite Parties submitted that such
contradictory disclosures regarding her residence clearly amounts to
deliberate suppression of material facts and constitutes an abuse of the
judicial process, ultimately disentitling the Petitioner from availing any
relief from this Court.
11. It was further contended by learned counsel for the State-
Opposite Parties that the application filed by the Petitioner under
section 36(2) before the learned trial court is a deliberate attempt to
delay the trial. It was submitted that such dilatory tactics employed by
the Petitioner are evident from the fact that despite issuance of several
summons by the learned trial court, the Victim has not appeared for
recording of her evidence. Moreover, during the pendency of the trial,
an affidavit was also filed by the mother of the victim, i.e. the present
Petitioner, with a prayer to examine the Victim only after the
examination of all other witnesses was completed, further indicating
the intention of the Petitioner to prolong the trial. Learned counsel
submitted that, on account of such conduct of the Petitioner and the
Victim, the trial has been repeatedly delayed and, as of now, except the
Victim, her mother (the present Petitioner) and the Investigating
Officer, all other witnesses have already been examined.
Page 9 of 33
12. To lend further credence to his submissions, the learned
counsel for the State-Opposite Parties has also placed reliance on
sections 36(2) and 40 of the POCSO Act, 2012 along with section 301
of the Cr.P.C. Referring to section 36(2) of the POCSO Act, 2012,
learned counsel for the State-Opposite Parties submitted that the
learned trial court has rightly observed that such application by the
Petitioner should instead have been filed by the Prosecution, after
getting instruction from the Petitioner and the Victim. Similarly, with
respect to section 40 of the Act, learned counsel for the State-Opposite
Parties stated that although it is true that the provision entitles the
family or guardian of a child Victim to be assisted by a legal counsel of
their choice for any offence under the POOCSO Act. However, such
right is subject to the proviso to Section 301 of Cr.P.C which means
that the counsel appointed by the Victim shall only assist the Public
Prosecutor and can only file written arguments with the permission of
the trial court. Likewise, referring to Section 301 of Cr.P.C, learned
counsel for the State-Opposite Parties submitted that although a private
individual like the Victim can hire a counsel/pleader to prosecute her
case and such private pleader, with the permission of the Court below,
can submit written arguments after presentation of evidence in the case,
however it is the Public Prosecutor/ Special Public Prosecutor alone
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who remains in charge of the prosecution and directs the actions of the
private pleader. Therefore, learned counsel for the State-Opposite
Parties contended that the court below has not committed any illegality
in rejecting the application of the Petitioner under section 36(2) of the
POCSO Act.
13. Lastly, to substantiate his contentions, the learned counsel for
the State-Opposite Parties has relied on Shiv Kumar v. Hukam Chand
and Ors., in Criminal Appeal No.1048 of 1998 via judgement dated
30.08.1999; along with a few other decisions of the Hon’ble Supreme
Court bearing (2020) 2 SCC 166, (1999) 7 SCC 467, (1988) 1 OCR
269, (1999) 17 OCR 579 (SC), and 70 (1990) CLT 6. In such view of
the matter, the learned counsel for the State-Opposite Parties submitted
that the present CRLMC application filed by the Petitioner, lacking
merit, ought to be dismissed forthwith.
ANALYSIS OF THE COURT
14. Heard learned counsel for the respective parties and perused
the documents available on record along with the submissions of the
respective counsels. The present writ petition has been filed assailing
the order dated 02.09.2024 passed by the learned Additional District
Judge-cum-Special Court under the POCSO Act, Cuttack, wherein a
petition under section 36(2) of the POCSO Act, 2012, filed by the
Page 11 of 33
mother of the Victim, who is the Petitioner in the present CRLMC
application, for allowing the recording the evidence of herself and the
victim, has been rejected by the trial court.
15. On a perusal of the impugned order of rejection dated
02.09.2024, at Annexure-3 series, it appears that the Court below has
rejected the Petition filed by the present Petitioner primarily on the
ground that the petition under section 36(2) of the POCSO Act, 2012
has not been filed thorough the special Public Prosecution, that the
Petitioner has not taken any prior permission under section 302 Cr.P.C
to conduct the prosecution, that despite several summons the being
issued to the Petitioner and her daughter-Victim they have not appeared
for the recording of their evidence, and that as per the order of this
Court dated 15.05.2024 in BLAPL No.1201 of 2024 no request for
arranging appropriate facilities for conducting examination of the
Victim through VC mode has been made by the Petitioner to the
Special P.P deputed to the trial court. This Court is thus called upon to
assess the relief sought by the Petitioner vis-à-vis the impugned
rejection order passed by the learned trial court, in the backdrop of the
settled principles of law governing the examination of a minor victim
in prosecutions under the POCSO Act, 2012.
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16. Since the present application has been filed under Section 528
of the BNSS, it is apposite to note that the foundational principle
underlying the said provision is rooted in the maxim quando lex aliquid
alicui concedit, concedere videtur id sine quo res ipsa esse non
potest–that is, when the law grants a power or right, it is deemed to
grant all incidental powers necessary for its effective exercise.
Consequently, the High Court is vested with inherent powers, inter alia,
to give effect to any order under the Code, to prevent abuse of the
process of any Court, and to otherwise secure the ends of justice (see
Dinesh Dutt Joshi v. State of Rajasthan, reported in (2001) 8 SCC
570). The section has been incorporated in the code to cover the
lacunae which might at times emerge in the procedural aspect of a law.
However, given the extraordinary nature of such inherent powers, such
power has to be exercised sparingly.
17. Before proceeding further, it would be apt to once again
underline the scope of the exercise and the primary objective of the
inherent powers of this Court under section 528 of BNSS (erstwhile
section 482 of the Cr.P.C). In State of Karnataka v. M. Devendrappa,
reported in (2002) 3 SCC 89, the Hon’ble Supreme Court, while
elucidating the scope and contours of the inherent powers of the Court
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to act ex debito justitiae so as to secure real and substantial justice,
observed that;
“6. Exercise of power under Section 482 of the Code in a case of
this nature is the exception and not the rule. The section does not
confer any new powers on the High Court. It only saves the
inherent power which the Court possessed before the enactment
of the Code. It envisages three circumstances under which the
inherent jurisdiction may be exercised, namely, (i) to give effect
to an order under the Code, (ii) to prevent abuse of the process
of court, and (iii) to otherwise secure the ends of justice. It is
neither possible nor desirable to lay down any inflexible rule
which would govern the exercise of inherent jurisdiction. No
legislative enactment dealing with procedure can provide for all
cases that may possibly arise. Courts, therefore, have inherent
powers apart from express provisions of law which are necessary
for proper discharge of functions and duties imposed upon them
by law. That is the doctrine which finds expression in the section
which merely recognizes and preserves inherent powers of the
High Courts. All courts, whether civil or criminal possess, in the
absence of any express provision, as inherent in their
constitution, all such powers as are necessary to do the right
and to undo a wrong in course of administration of justice on
the principle quando lex aliquid alicui concedit, concedere
videtur et id sine quo res ipsae esse non potest (when the law
gives a person anything it gives him that without which it
cannot exist). While exercising powers under the section, the
court does not function as a court of appeal or revision. Inherent
jurisdiction under the section though wide has to be exercised
sparingly, carefully and with caution and only when such
exercise is justified by the tests specifically laid down in the
section itself. It is to be exercised ex debito justitiae to do real
and substantial justice for the administration of which alone
courts exist. Authority of the court exists for advancement of
justice and if any attempt is made to abuse that authority so as
to produce injustice, the court has power to prevent abuse. ItPage 14 of 33
would be an abuse of process of the court to allow any action
which would result in injustice and prevent promotion of
justice….”
(Emphasis supplied)
18. In fact, in Shiji @ Pappu & Ors. v. Radhika & Anr., reported
in (2011) 10 SCC 705, the Hon’ble Supreme Court while cautioning
against the exercise of the profusion of power at the disposal of the
High Courts under Section 482 Cr.P.C (in paragraph 18 thereof), has
clarified that although Section 482 Cr.P.C confers wide inherent
powers on the High Court, such powers must be exercised with great
care and circumspection. The Court stressed that it is neither feasible
nor appropriate to provide an exhaustive list of circumstances justifying
interference by a High Court in exercise of its inherent powers. Rather,
the guiding test is whether intervention is necessary to secure the ends
of justice and to prevent misuse of judicial proceedings. More recently,
in Ajay Malik v. State of Uttarakhand, reported in 2025 SCC OnLine
SC 185, the Hon’ble Apex Court has once again clarified that;
“8. It is well established that a High Court, in exercising its
extraordinary powers under Section 482 of the CrPC, may issue
orders to prevent the abuse of court processes or to secure the
ends of justice. These inherent powers are neither controlled nor
limited by any other statutory provision. However, given the
broad and profound nature of this authority, the High Court must
exercise it sparingly. The conditions for invoking such powersPage 15 of 33
are embedded within Section 482 of the CrPC itself, allowing the
High Court to act only in cases of clear abuse of process or
where intervention is essential to uphold the ends of justice.”
(Emphasis supplied)
19. Upon a consideration of the factual matrix, it emerges that the
Petitioner and the Victim reside in a village in Nayagarh which is
situated at an approximate distance of 100 km from the court in seisin
of the matter. It has been averred that the Petitioner is in severe
financial distress and that, the Victim being a minor, they are facing
substantial difficulty in attending court on the scheduled dates. The
State-Opposite Parties have sought to controvert the aforesaid assertion
by questioning the conduct of the Petitioner, particularly on the ground
that the Petitioner has disclosed a different place of residence in the
present CRLMC application as compared to an earlier CRLMC
application. As regards the said contention, this Court is of the
considered view that the adjudication of the present CRLMC
application must proceed on the factual foundation pleaded in the
present proceedings. In the present CRLMC application, as also in the
petition filed before the Court below under Section 36(2) of the
POCSO Act, 2012, the rejection whereof forms the subject matter of
the present challenge, the Petitioner has consistently disclosed her
place of residence as Village Fatehgarh, in the district of Nayagarh. In
Page 16 of 33
the absence of any cogent material adduced by the State-Opposite
Parties to dislodge the said factual position, this Court is inclined to
accept the same.
20. Upon further scrutiny of the factual background, another
significant impediment preventing the Petitioner and the Victim from
appearing before the trial court, for recording of their evidence, is the
threat of physical harm allegedly extended by the principal accused. It
has been averred that the principal accused, being an influential person
in the locality, has been continuously threatening the Petitioner and her
minor daughter. So much so that the Petitioner was constrained to
lodge an FIR bearing Lalbaug P.S. Case No. 204 of 2023 for offences
punishable under Sections 323, 34, 506, and 507 of the IPC against the
principal accused. A copy of the said FIR is annexed as Annexure-4 to
the present petition. The FIR alleges that the principal accused, along
with another person, assaulted the Petitioner and issued threats of dire
consequences. On a prima facie consideration of the aforesaid material,
this Court is satisfied that there exists a credible and subsisting threat
which reasonably impedes the Petitioner and the Victim from
appearing before the trial court.
21. Since the controversy in the present case is revolves around
the POCSO Act and involves a minor victim, it would be apposite, at
Page 17 of 33
the threshold, to advert to the fundamental object and child-centric
orientation of the statutory scheme of the Act. The POCSO Act has
been enacted in furtherance of the constitutional mandate under Article
15(3), which empowers the State to make special provisions for
children, and Article 39(f) of our Constitution, which directs the State
to ensure that children are afforded opportunities and facilities to
develop in a healthy manner, in conditions of freedom and dignity, and
are protected against exploitation and moral and material abandonment.
The Statement of Objects and Reasons of the Act unequivocally
underscores the legislative intent to curb child abuse and to protect
children from offences of sexual assault, sexual harassment, and allied
crimes. The statutory scheme, vis-à-vis sections 19, 24, 25, 26, 33, 36
and others, manifests a clear legislative mandate requiring the State and
its instrumentalities to adopt a child-centric framework to ensure the
protection of the child at every stage of the criminal process and to
regulate the conduct of trial in a manner consistent with such objective.
Further, Section 37 of the Act clearly mandates that the trial be
conducted in-camera and in the presence of the parents of the child or
any person in whom the child reposes trust and confidence. Section 36
further casts an obligation upon the Special Court to ensure that the
child is not exposed to the accused while recording evidence, while
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simultaneously safeguarding the accused’s right to hear the testimony
and communicate with his/her counsel. Thus, it is manifest that the
overarching objective of the POCSO Act is to shield the child from
intimidation, trauma, and secondary victimisation, and to ensure a
child-friendly environment for conducting the trial and recording the
testimony of the minor Victim, all the while preserving her dignity and
psychological well-being.
22. So far as the legitimacy of the mode of video conferencing for
recording evidence of the parties is concerned, the matter has been
comprehensively put to rest by the Hon’ble Supreme Court in State of
Maharashtra v. Praful B. Desai, reported in (2003) 4 SCC 601,
wherein the Hon’ble Court clarified that ‘presence’ under Section 273
Cr.P.C includes constructive presence through ones counsel and that
evidence, including via video conferencing, is statutorily permissible.
While setting aside the impugned judgement of the High Court the
Hon’ble Supreme Court observed that;
“13. One needs to set out the approach which a court must adopt
in deciding such questions. It must be remembered that the first
duty of the court is to do justice. As has been held by this Court
in the case of Nageshwar Shri Krishna Ghobe v. State of
Maharashtra [(1973) 4 SCC 23 : 1973 SCC (Cri) 664] courts
must endeavour to find the truth. It has been held that there
would be failure of justice not only by an unjust conviction but
also by acquittal of the guilty for unjustified failure to producePage 19 of 33
available evidence. Of course the rights of the accused have to be
kept in mind and safeguarded, but they should not be
overemphasized to the extent of forgetting that the victims also
have rights.
***
22. …Thus in cases where the witness is necessary for the ends of
justice and the attendance of such witness cannot be procured
without an amount of delay, expense or inconvenience which,
under the circumstances of the case would be unreasonable, the
court may dispense with such attendance and issue a commission
for examination of the witness…Thus in cases where the
attendance of a witness cannot be procured without an amount
of delay, expense or inconvenience, the court could consider
issuing a commission to record the evidence by way of video-
conferencing.”
(Emphasis Supplied)
23. In Alakh Alok Srivastava v. Union of India, reported in
(2018) 17 SCC 291, the Hon’ble Supreme Court, while dealing with
systemic failures in the implementation of the POCSO framework,
underscored that the statutory safeguards under the POCSO Act are not
merely ornamental, but substantive mandates intended to accomplish
child-centric justice. The Court, in paragraph 25, issued directions to
the Union and States to ensure effective institutional mechanisms,
infrastructure, and compliance with victim-friendly procedures, thereby
reinforcing that procedural guidelines under the POCSO Act must be
effectuated in their true spirit to secure the welfare, dignity, and
psychological safety of child victims, and cannot be reduced to mere
Page 20 of 33
technical formalities. In Eera v. State (NCT of Delhi), reported in
(2017) 15 SCC 133, the Hon’ble Apex Court, analysing the Statement
of Objects and Reasons and the Preamble of the POCSO Act, made the
following observation:
“20. …the very purpose of bringing a legislation of the present
nature is to protect the children from the sexual assault,
harassment and exploitation, and to secure the best interest of the
child. On an avid and diligent discernment of the Preamble, it is
manifest that it recognises the necessity of the right to privacy
and confidentiality of a child to be protected and respected by
every person by all means and through all stages of a judicial
process involving the child. Best interest and well-being are
regarded as being of paramount importance at every stage to
ensure the healthy physical, emotional, intellectual and social
development of the child….There is also a mention which is quite
significant that interest of the child, both as a victim as well as a
witness, needs to be protected. The stress is on providing child-
friendly procedure. Dignity of the child has been laid immense
emphasis in the scheme of legislation. Protection and interest
occupy the seminal place in the text of the POCSO Act.”
(Emphasis supplied)
24. In Sakshi v. Union of India, reported in (2004) 5 SCC 518,
the Hon’ble Supreme Court, while entertaining a writ petition filed by
way of a public interest litigation raising the concern of a dramatic
increase in sexual violence against women, reaffirmed the principle that
the rules of procedure are meant to advance justice and not to obstruct
it. With regard to recording of the deposition of a Victim in matters
Page 21 of 33
involving sexual offences, the Hon’ble Court, taking into consideration
section 273 of the Cr.P.C, observed that;
“31. The whole inquiry before a court being to elicit the truth,
it is absolutely necessary that the victim or the witnesses are
able to depose about the entire incident in a free atmosphere
without any embarrassment. Section 273 CrPC merely requires
the evidence to be taken in the presence of the accused. The
section, however, does not say that the evidence should be
recorded in such a manner that the accused should have full view
of the victim or the witnesses. Recording of evidence by way of
video-conferencing vis-à-vis Section 273 CrPC has been held to
be permissible in a recent decision of this Court in State of
Maharashtra v. Dr. Praful B. Desai [(2003) 4 SCC 601 : 2003
SCC (Cri) 815] . There is major difference between substantive
provisions defining crimes and providing punishment for the
same and procedural enactment laying down the procedure of
trial of such offences. Rules of procedure are handmaiden of
justice and are meant to advance and not to obstruct the cause
of justice. It is, therefore, permissible for the court to expand or
enlarge the meanings of such provisions in order to elicit the
truth and do justice with the parties.
32. The mere sight of the accused may induce an element of
extreme fear in the mind of the victim or the witnesses or can
put them in a state of shock. In such a situation he or she may
not be able to give full details of the incident which may result
in miscarriage of justice. Therefore, a screen or some such
arrangement can be made where the victim or witnesses do not
have to undergo the trauma of seeing the body or the face of the
accused…”
(Emphasis Supplied)
Page 22 of 33
After making the aforesaid observations, the Hon’ble Apex
Court disposed of the writ petition with certain directions in paragraph
34 thereof. Primarily, it was directed that;
“34….(2) In holding trial of child sex abuse or rape:
(i) a screen or some such arrangements may be made
where the victim or witnesses (who may be equally vulnerable
like the victim) do not see the body or face of the accused;
(ii) the questions put in cross-examination on behalf of the
accused, insofar as they relate directly to the incident, should be
given in writing to the presiding officer of the court who may put
them to the victim or witnesses in a language which is clear and
is not embarrassing;
(iii) the victim of child abuse or rape, while giving testimony
in court, should be allowed sufficient breaks as and when
required.
These directions are in addition to those given in
State of Punjab v. Gurmit Singh [(1996) 2 SCC 384 : 1996 SCC
(Cri) 316].”
(Emphasis supplied)
25. Now, shifting focus to the impugned order of rejection, which
is at the heart of the issue involved in the present Writ Petition, it is
evident that the rejection order emanates from a petition filed by the
present Petitioner under section 36(2) POCSO Act, 2012. Section 36 of
the Act states that;
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“36. Child not to see accused at the time of testifying.–(1) The
Special Court shall ensure that the child is not exposed in
anyway to the accused at the time of recording of the evidence,
while at the same time ensuring that the accused is in a position
to hear the statement of the child and communicate with his
advocate.
(2) For the purposes of sub-section (1), the Special Court may
record the statement of a child through video conferencing or by
utilising single visibility mirrors or curtains or any other device.”
On a plain reading of the provision, it is plainly manifest that
Section 36 embodies a clear legislative mandate that the evidentiary
process must be structured around the psychological safety and dignity
of the minor Victim. Sub-section (1) casts a statutory obligation upon
the Special Court to ensure that, while testifying, the child is not
exposed to the accused in any manner whatsoever. Sub-section (2)
further expressly authorises the Court to record the child’s statement
through video conferencing or any other means that obviate such
exposure. This Court is, therefore, of the considered view that although
the permissive expression “may” employed in Section 36(2) appears
discretionary in form, it must be construed purposively in light of the
child-centric objective of the statute, namely, to shield the child from
intimidation, trauma, and secondary victimisation during trial.
Consequently, where the minor victim seeks to depose through video
conferencing due to legitimate and bona fide reasons, such request
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directly effectuates the statutory mandate under Section 36 and
advances the legislative intent of ensuring a safe, dignified, and non-
hostile testimonial environment for the minor Victim while
simultaneously preserving the right of the accused to hear the
testimony and communicate with his/her counsel.
26. Proceeding along similar lines, the impugned rejection order
under Annexure-3 series divulges that the Court in seisin over the
matter has relied on the express provision under section 302 of the
Cr.P.C to reject the Petitioner’s application under section 36(2) of the
POCSO Act. Section 302 of the Cr.P.C, along with section 32 of the
POCSO Act, reaffirm the public prosecutor’s right to conduct the
prosecution. Section 302 of the Cr.P.C states as follows;
“302. Permission to conduct prosecution.–(1) Any Magistrate
inquiring into or trying a case may permit the prosecution to be
conducted by any person other than a police officer below the
rank of inspector; but no person, other than the Advocate-
General or Government Advocate or a Public Prosecutor or
Assistant Public Prosecutor, shall be entitled to do so without
such permission:
Provided that no police officer shall be permitted to conduct
the prosecution if he has taken part in the investigation into the
offence with respect to which the accused is being prosecuted.
(2) Any person conducting the prosecution may do so personally
or by a pleader.”
Section 32 of the POCSO Act states;
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“32. Special Public Prosecutors.–(1) The State Government
shall, by notification in the Official Gazette, appoint a Special
Public Prosecutor for every Special Court for conducting cases
only under the provisions of this Act.
(2) A person shall be eligible to be appointed as a Special
Public Prosecutor under sub-section (1) only if he had been in
practice for not less than seven years as an advocate.
(3) Every person appointed as a Special Public Prosecutor
under this section shall be deemed to be a Public Prosecutor
within the meaning of clause (u) of section 2 of the Code of
Criminal Procedure, 1973 (2 of 1974)and provision of that Code
shall have effect accordingly.”
27. A conjoint reading of the aforesaid provisions indicates that
the Special Public Prosecutor is statutorily empowered, and
ordinarily expected, to conduct the prosecution in cases involving
offences under the POCSO Act. In the present matter, the learned
trial court has reasoned that since the application under Section 36(2)
of the POCSO Act was filed by the Petitioner in her own capacity,
and not through the Special Public Prosecutor deputed to the Court,
the same was not maintainable. At first blush, the reasoning of the
learned Court below appears to be consistent with the statutory
scheme and is ostensibly supported by the provisions quoted
hereinabove. At the same time, it is also trite that procedural
pathways prescribed by the legislature are to be adhered to with due
rigor. However, that said, it is equally well settled that rules of
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procedure must operate in furtherance of, and in harmony with, the
overarching objective of the legislation, particularly when a special
statute such as the POCSO Act is concerned. After all, procedural
requirements are ultimately intended to facilitate the administration
of justice and not to obstruct it. The question, therefore, is not
whether the Special Public Prosecutor alone is competent to conduct
the prosecution, to the exclusion of the Petitioner’s counsel, but
whether the victim or her guardian-the Petitioner, is denuded of the
locus to invoke a statutory protection intended for the child,
particularly where such invocation furthers the legislative mandate of
the Statute.
28. In Shreenath & Anr. v. Rajesh & Ors., reported in (1998) 4
SCC 543, the Hon’ble Supreme Court observed that procedural law
is always subservient to, and in aid of, justice, and that any
interpretation which eludes the advancement of justice ought not to
be adopted. The Court further emphasised that procedure must be
just, fair, and reasonable, and cannot be applied in a pedantic manner
so as to frustrate the object of furthering the ends of justice. So far as
the contours of procedural fairness are concerned, it is no longer res
integra and has been well settled in a long line of decisions following
Maneka Gandhi v. Union of India, reported in AIR 1978 SC 597.
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29. In a Criminal trial, a procedural irregularity is not regarded
as fatal, unless it has occasioned in prejudice to the accused in his
defence. Law is settled on the point (see Willie (William) Slaney v.
State of M.P., reported in (1955) 2 SCC 340) that if there is
substantial compliance with the procedure and the accused is not
prejudiced and has got a fair opportunity to defend himself, the trial
is not vitiated unless the accused can show substantial non-
compliance leading to prejudice to his defence. In William Slaney’s
case (supra) it was held that;
“5. Before we proceed to set out our answer and examine the
provisions of the Code, we will pause to observe that the Code is
a code of procedure and, like all procedural laws, is designed to
further the ends of justice and not to frustrate them by the
introduction of endless technicalities. The object of the Code is
to ensure that an accused person gets a full and fair trial along
certain well-established and well-understood lines that accord
with our notions of natural justice. If he does, if he is tried by a
competent court, if he is told and clearly understands the nature
of the offence for which he is being tried, if the case against him
is fully and fairly explained to him and he is afforded a full and
fair opportunity of defending himself, then, provided there
is substantial compliance with the outward forms of the law,
mere mistakes in procedure, mere inconsequential errors and
omissions in the trial are regarded as venal by the Code and the
trial is not vitiated unless the accused can show substantial
prejudice. That, broadly speaking, is the basic principle on which
the Code is based.”
(Emphasis supplied)
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30. Likewise, in in State (NCT of Delhi) v. Shiv Kumar Yadav,
reported in (2016) 2 SCC 402 the Apex Court, while discussing the
provisions under the Cr.P.C relating to the recall of witness, re-
affirmed the idea of fair trial as a part of the guarantee under Article 21
of the Constitution of India and, observed that it is further well settled
principle of law that fairness of trial is to be viewed not only from the
point of view of the accused, but also from the point of view of the
victim and the society. Similar sentiments were echoed by the Hon’ble
Apex Court in Zahira Habibullah Sheikh Vs. State of Gujarat,
reported in (2006) 3 SCC 374, wherein it was observed that;
“37. A criminal trial is a judicial examination of the issues in the
case and its purpose is to arrive at a judgment on an issue as to a
fact of relevant facts which may lead to the discovery of the fact
in issue and obtain proof of such facts at which the prosecution
and the accused have arrived by their pleadings; the controlling
question being the guilt or innocence of the accused. Since the
object is to mete out justice and to convict the guilty and protect
the innocent, the trial should be a search for the truth and not a
bout over technicalities and must be conducted under such
rules as will protect the innocent and punish the guilty. The
proof of charge which has to be beyond reasonable doubt must
depend upon judicial evaluation of the totality of the evidence,
oral and circumstantial, and not by an isolated scrutiny.
38. Failure to accord fair hearing either to the accused
or the prosecution violates even minimum standards of due
process of law. It is inherent in the concept of due process of law,
that condemnation should be rendered only after the trial in
which the hearing is a real one, not sham or a mere farce andPage 29 of 33
pretence. Since the fair hearing requires an opportunity to
preserve the process, it may be vitiated and violated by an over
hasty stage-managed, tailored and partisan trial.
39. The fair trial for a criminal offence consists not only
in technical observance of the frame, and forms of law, but also
in recognition and just application of its principles in
substance, to find out the truth and prevent miscarriage of
justice.”
(Emphasis supplied)
31. Given the central issue involved in the case is with regard to
examination of the Victim over video conferencing, it seems pertinent
to also refer to the ‘Orissa High Court Video Conferencing for Courts
Rules, 2020’, (hereinafter “VC Rules, 2020”) which were floated vide
notification No.1206/R dated 02.11.2020. Rule 3(1) of the said rules,
‘General Principles Governing Video Conferencing’, states that video
conferencing facilities can be used at all the stages of judicial
proceeding. This implies that there is no restriction to conduct video
conferencing at the evidence stage in a proceeding. Similarly, Rule 6(1)
therein states that any party to the proceeding or even a witness, except
where proceedings are initiated at the instance of the Court, is
empowered to move the Court to request for video conferencing. In the
present case, the victim being a party to the proceeding, can be
considered to be well within her rights to move an application for video
conferencing. Moreover, the Rule does not contemplate the
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requirement of any Public Prosecutor or Special Public Prosecutor for
filing such application/ request for video conferencing. Rule 6(4) again
states that once such request for video conferencing is moved, the court
will first ascertain that the application/ request has not been made with
an intention to impede fair trial or to delay the proceeding and, upon
being satisfied, the court shall pass appropriate orders therein. Rule 8 of
the VC Rules, 2020 titled ‘Examination of Persons’ provides at sub-
rule (17) that the Court conducting the proceeding may, on its own
motion or at the request of the person to be examined, take appropriate
measures to protect the privacy of the person seeking to be examined,
by taking into account the ‘best interests’ of such person and
considering several aspects like the age/gender/physical condition and
recognized customs and practices.
32. Having heard the learned counsel for the respective parties
and on a conspectus of the factual matrix of the present case, it is
abundantly clear that the minor Victim and her desolate mother-the
Petitioner are facing genuine hardships and impediments in appearing
before the Court in seisin over the matter for recording of their
evidence. So far as the impugned order dated 02.09.2024 under
Annexure-3 series is concerned, this Court observes that the learned
trial court has passed such orders without realising the gravity and
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seriousness of the issue. Moreover, the VC Rules, 2020 has not been
taken into consideration by the learned trial court while passing the
impugned orders. In view of the foregoing discussion and in
furtherance of the victim-centric objectives underlying the POCSO Act,
2012, as also to secure the larger interests of justice, this Court, in
exercise of its inherent jurisdiction under Section 482 of the Cr.P.C
(now Section 528 of the BNSS), deems it proper to set aside the
impugned order dated 02.09.2024 under Annexure-3 series.
Accordingly, the said order is hereby set aside.
It is further directed that the Petitioner shall approach the
learned Special Public Prosecutor deputed to the Court in seisin of the
matter, who shall move a fresh application under Section 36(2) of the
POCSO Act. Upon such application being filed, the learned Additional
District Judge-cum-Special Court under the POCSO Act, Cuttack shall
consider the same in accordance with law, keeping in view the broader
spirit and the objective of the Act as well as the Video Conferencing
Rules, 2020 framed by this Court. Subject to there being no further
legal impediment, the trial court shall ensure that necessary logistical
arrangements are made for enabling the Victim and her mother-the
Petitioner to record their evidence through video conferencing mode.
Moreover, given that the trial has been pending for some time, the
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learned trial court is directed to make every endeavour to expedite the
trial, and the parties are directed to cooperate with the court in seisin
over the matter for an early conclusion of the trial.
33. With the aforesaid observations and directions, the CRLMC
application is allowed. However, there shall be no order as to costs.
(A.K. Mohapatra)
Judge
Orissa High Court, Cuttack
The 27th February, 2026/D. Aech, Secretary.
Signature Not Verified
Digitally Signed
Signed by: DEBASIS AECH
Reason: Authentication
Location: ORISSA HIGH COURT
Date: 05-Mar-2026 18:28:36
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