Gauhati High Court
Page No.# 1/3 vs The State Of Assam on 14 August, 2025
Page No.# 1/30
GAHC010150132025
2025:GAU-AS:10847
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./800/2025
GAURAV UPADHYAYA
S/O- LATE SHYAM SUNDAR UPADHYA,
R/O- GOVT. QUARTER NO- B-II/ZONE -II, ASSAM POLICE HOUSING
COMPLEX, ULUBARI, GUWAHATI-07, ASSAM
VERSUS
THE STATE OF ASSAM
REP. BY THE PP, ASSAM
2:LEENA DOLEY
W/O-LATE NILOTPAL LAHON
R/O- H.NO-54
BELTOLA COLLEGE ROAD
BELTOLA
KAMRUP METR
Advocate for the Petitioner : MR. A AHMED, MR I U CHOUDHURY,U U KHAN
Advocate for the Respondent : PP, ASSAM, A J KASHYAP (R-2),MR. K KAKOTI(R-2),MR H K
NATH(R-2),ANZIR ALI MIR(R-2)
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BEFORE
HONOURABLE MRS. JUSTICE SHAMIMA JAHAN
JUDGMENT
Date : 14-08-2025
This is an application filed under Section 528 of the BNSS 2023 read with
Article 227 of the Constitution of India, challenging the exercise of power by the
learned Session Judge, Karbi Anglong, Diphu in hearing POCSO case being POCSO
Case No. 37/2021 registered under Section 345/345A of the IPC read with Section
10 of Protection of Children from Sexual Offences Act, 2012 (herein after shortly as
POCSO Act) as well as challenging the order dated 18.06.2025 passed by the
learned Session Judge, Karbi Anglong, Diphu by which the charge was framed
against the accused person. The petitioner has also challenged the order of
framing charge on the additional ground that the learned Session Judge, Karbi
Anglong, Diphu framed the same in absence of the accused person.
FACTS
2. The prosecution case as is unfolded by the FIR reveals that the petitioner
who was the Superintendent of Police, Karbi Anglong, Assam allegedly molested
the 13 year old daughter of the informant on 31.12.2019 in his official residence in
Diphu, Karbi Anglong. The informant stated that on the said day, the accused and
his wife invited the informant along with her victim daughter as well as 9 year old
son to attend the birthday party of his elder son, to which they attended and
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during the party, the accused person took the informant as well as her children to
his tower building and on reaching the same when the informant went to the
washroom, the accused person was stated to have forcibly kissed the victim on her
lips and that it was witnessed by her son. She further stated that the accused
person had arranged a room for the informant and her family to stay at night and
went to drop them after the party was over and on reaching the suite, the accused
person put his hand on the stomach of her daughter from behind and touched her
private parts on the pretext of showing a video and that again on leaving the said
place, the accused person is stated to have tried to kiss the victim which the victim
resisted. The informant also stated that the victim did not tell her about the
incident on the said night but on the next day she told the informant and that the
informant asked the accused person and confronted him to which the accused
person admitted his actions and said that he had done so in an inebriated state
and that thereafter the FIR was lodged. On receipt of the said FIR, the police
registered the case as All Women P.S. Case No. 5/2020 under Section 354 IPC read
with Section 10 of POCSO Act, 2012 and investigated the case.
3. Thereafter, the said case was transferred to CID by order dated 06.01.2021 by
the DGP, Assam. During the investigation, the Investigation Officer made a prayer
for adding Section 354(4) of the IPC and the provision of Scheduled Caste and
Schedule Tribes (Prevention of Atrocities) Act (shortly as STSC Act), which was
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allowed by the Magistrate. The addition of the provision of STSC Act was put to
challenge by the petitioner in a criminal petition as well as in writ proceedings
before the High Court. During the said proceedings, an interim order was passed
by which the provision of the STSC Act was directed not to be applied in the
present proceeding until the issue of the victim being a Schedule Tribe is settled by
the State Level Caste Scrutiny Committee.
4. On completion of the investigation, the police submitted the charge sheet
against the petitioner before the Addl. Session Judge-2, Kamrup (M) being the
charge sheet No. 44/2021 on 31.03.2021 under Section 354/354A of the IPC read
with Section 10 of POCSO Act. However, while submitting the charge sheet, the I.O
made a further prayer to allow him to continue with the further investigation of the
case as provided under Section 173(8) of the Cr.PC. The Addl. Session Judge-2
Kamrup (M) vide order dated 08.04.2021 took cognizance of the offence and
issued summon to the accused person/petitioner. The said cognizance order is
again put to challenge in a criminal petition before the High Court on the ground
that the said Court had no jurisdiction to try the same. During the pendency of the
aforesaid criminal petition, the learned Session Judge, Kamrup(M) vide order dated
20.05.2021 withdrew the case record from the Court of learned Addl. Session
Judge-2, Kamrup(M) and transferred the same to the Court of the learned Special
Judge POCSO Kamrup(M) for disposal. However, thereafter the Hon’ble High Court
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vide order dated 17.11.2021 passed in the said criminal petition, in view of the
submissions made by the parties concerned that the cause of action was in Diphu
and in virtue of Section 177 of the Cr.PC which requires case to be conducted
within the jurisdiction where the offence was committed, transferred the case from
Addl. Session Judge-2, Kamrup(M), Guwahati to Special Judge Diphu, for trial and
disposal of the same.
5. The learned Addl. District and Session Judge-cum-Special Judge, Diphu, Karbi
Anglong thereafter took up the matter for hearing. During the proceeding, the
accused person took up another issue of non-service of documents to him by filing
an application under Section 207 of the Cr.PC. In response to the said application,
this Hon’ble High Court had ordered for supply of documents to the petitioner.
However, the I.O had supplied only the name of the witnesses without the
depositions thereof. The accused person had again approached the High Court for
supply of the remaining documents. However, the High Court directed him to
approach the Sessions Judge for the same. The learned Special Judge, POCSO,
Karbi Anglong, Diphu vide order dated 06.11.2024 however, dismissed the
application filed under Section 207 Cr.PC on the ground that the petitioner did not
specify which documents were not furnished to him with the further finding that
the Court vide order dated 18.01.2024 had already furnished all the documents
and the said Court had fixed the case for consideration of charge. Be it stated
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herein that the accused person had filed the petition under Section 207 of the
Cr.PC for documents which were not relied upon by the I/O while filing the charge
sheet. Thereafter, the learned Court of Sessions Judge-cum-Special Judge, Karbi
Anglong, Diphu vide order dated 18.06.2025, on a further application made by the
petitioner for documents under Section 230 of the BNSS, 2023, dismissed the same
on the ground that at the time of framing of charge, the evidence of accused
cannot be put forth. The learned Court observed that during the framing of charge,
roving and fishing enquiry is impermissible and that the same can be framed on
the records of the case and documents filed by the prosecution as well as on the
submissions of the accused and the prosecution and on the same, the learned
Special Judge rejected the said ground.
6. Thereafter, the learned Sessions Judge-cum-Special Judge after hearing on
the charge against the petitioner, framed Charge under Section 10 of POCSO Act
and Section 354/354A of the IPC. While framing the charge, the learned Trial Court
considered the materials on record, the statement of the victim and after hearing
both the sides, the learned Trial Court after framing the charge, as mentioned
above, further observed that during hearing on charge physical presence of the
accused was not necessary and the same was framed in the presence of the
learned counsel for the petitioner. He further observed that the presence of the
accused person is required only when the charge is explained to him and at that
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stage, he has to be asked as to whether he pleads guilty or intends to face trial
which according to the learned Court can be done on the next date of hearing and
thereby fixed the case on 21.07.2025. It is this order that is challenged by the
petitioner before this Court.
7. The petitioner has challenged the said order dated 18.06.2025 by the instant
petition on two (2) grounds i.e., (i) the learned Sessions Judge-cum-Special Judge
had no power to hear the matter and pass the order in a POCSO case and (ii) the
learned Judge could not have framed the charged in absence of the accused
person stated to be in violation of Section 228 of the Cr.PC. This Court vide order
10.07.2025 after hearing the counsels had passed an interim order by which the
next date fixed by the learned Sessions Judge as 21.07.2025 was directed to be
postponed and the said interim order has continued till date.
SUBMISSIONS
8. Mr. K.N. Choudhury, learned Senior Counsel assisted by Mr. A. Ahmed,
learned counsel for the petitioner submits before this Court that under Section 28
of the POCSO Act, it is provided that for speedy trial, the State Government in
consultation with the Chief Justice of the High Court will designate, for each
district, a Court of Session to be a Special Court to try offence under the POCSO
Act, by issuing a notification in the official gazette. He further submits that the
proviso appended to the said Section stipulates that if a Court of Session is already
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notified as a Children’s Court under Commission For Protection Of Child Rights Act,
2005, (herein referred to as ‘Act of 2005) the same shall be deemed to be a Special
Court under the said Section. The learned Senior Counsel had submitted that by
virtue of Sub-Section 1 of Section 28 of the POCSO Act, it is the Government of the
State who in consultation with the Chief Justice of the High Court, shall appoint the
Special Court to try cases under the POCSO Act. He pointed out, to the additional
affidavit filed by the petitioner in the instant proceedings. By the said additional
affidavit, two notifications were annexed and the same were relied on, by the
learned Senior Counsel. The first notification was dated 24.05.2018, which was
furnished on an application being made under the Right to Information Act. He
placed the said notification being numbered as JDJ/93/2018-ESTT-JUDI/5-A dated
24.05.2018, by which it is notified that on recommendation of the Gauhati High
Court dated 11.04.2018, the Governor of Assam was pleased to designate the
Courts of Addl. Sessions Judge where there is only one court of Addl. Sessions
Judge in the districts, as Fast Track Court to try cases of rape/murder/rape and
murder of Women & Children on day to day basis and amongst other courts, Addl.
Sessions Judge, Karbi Anglong, Diphu was designated to act as Fast Track Court to
try cases as aforesaid. As such, the learned Senior Counsel submits that the Addl.
Sessions Judge, Karbi Anglong, Diphu was the only authority who was designated
to hear cases under the POCSO Act and not the Sessions Judge as has been done
in the instant case.
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9. Mr. K.N. Choudhury, learned Senior Counsel had also relied on the
subsequent notification dated 22.01.2020 by which it was stated that the Court of
Additional District & Sessions Judge, Karbi Anglong, Diphu which was designated as
Special Court under Section 28 of the POCSO Act vide notification dated
24.05.2018 shall exclusively deal with POCSO matters. It was further notified that
in pursuance to the same, the cases which were pending in the Court of District &
Sessions Judge, KarbiAnglong, Diphu may be transferred to the Court of Addl.
District & Sessions Judge, KarbiAnglong, Diphu with immediate effect. As such, he
submits that the District & Sessions Judge, KarbiAnglong, Diphu cannot by any
stretch hear cases under the POCSO Act. As such, he submits that the impugned
order dated 18.06.2025 is nonest and the same may be set aside.
10. Apart from the aforesaid argument, the learned Senior Counsel has also
argued that the Sessions Judge could not have framed charge against the
petitioner in his absence as has been done vide order dated 18.06.2025. In that
context, the learned Senior Counsel relied on Section 228 of the Cr.PC which
provides that after hearing, if the judge is of the opinion that there is ground for
presuming that the accused as committed an offence, he shall frame charge
against the accused person and that the charge shall be read and explained to the
accused and the accused shall be asked whether he pleads guilty of the offence
charged or claims to be tried. As such, the learned Senior Counsel submits that
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accused person has to be present during framing of charge and that the charge will
be explained and he will be asked whether he admits to the offence or he does
not. The framing of charge vide order dated 18.06.2025 in presence of the
representative of the accused person and not in presence of the accused person
himself was stated to be legal. He placed reliance on the Judgment of the Hon’ble
Supreme Court passed in HDFC Bank Limited Vs. J.J. Mannan reported in (2010) 1
SCC 679, by which the Apex Court had observed that the respondent No. 1 had
never appeared in the Trial Court and if the charge was framed in his absence, it
would defeat the very purpose of Section 240(2) Cr.PC. He also placed reliance on
a Judgment passed by the Orissa High Court reported in 2010 SCC OnLine ORI 512
by which the High Court observed that the Special Judge, for the delay caused
already in the proceeding, framed the charge and read over and explained to the
advocate of the accused and that the said exercise was stated to be, not in
consonance with Section 240 of the Cr.PC. These are the submissions of the
learned Senior Counsels.
11. On the other hand, Mr. A.A. Mir, learned counsel for the respondent No. 2
submits that the Sessions Judge has the power to hear cases under the POCSO Act
and as such, the order dated 18.06.2025 was rightly passed by him. He placed
reliance on the proviso to Section 28 of the POCSO Act which provides that if a
Session Court is already designated as a Children’s Court under the Act of 2005,
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the said Court would be the Special Court and would try offences under the POCSO
Act. He relied on the notification dated 01.08.2017 issued by the Govt. of Assam
under the Judicial Department, by which it is provided that on recommendation of
the Gauhati High Court dated 08.06.2017, the Governor of Assam, designated the
Court of District & Sessions Judge in each judicial districts as Children’s Court under
Section 25 of the Act of 2005. By placing this notification, the leaned counsel
submitted that the District & Sessions Judge who was already functioning as
Children’s Court under the said Act, can try offences under the POCSO Act and as
such, in the instant case, the case is tried and the order of framing of charge is
passed.
12. On the further argument that the charge could not have been framed in the
absence of the accused person, the counsel for the respondent No. 2 states that
the presence of the accused person while framing the charge is not contemplated
under the Cr.PC. He placed reliance on Section 228 Cr.PC and submitted that upon
consideration and hearing, if the judge finds grounds for presuming that the
accused has committed an offence, shall frame charge in writing against the
accused, which is provided in Sub-Section 1 of Section 228 CrPC. He thereafter
placed Sub-Section 2 of Section 228 CrPC which provides that a judge after framing
charge shall read and explain the said charge to the accused and the accused shall
then be asked as to whether he pleads guilty or would be tried. As such, he
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submits that the presence of the accused is required only when the charges are
read and explained to him and not while framing of charge. In view of the same,
he submits that there is no fault in framing the charge in presence of the advocate
of the accused and in absence of the accused. The counsel further submits that the
Court of Addl. District & Sessions Judge was not functioning and as such, the cases
are being taken up by the District & Sessions Judge, Karbi Anglong, Diphu.
13. Mr. K.K. Parashar, learned Addl. Public Prosecutor for the State submits that
under the proviso to Section 28 of the POCSO Act, the Sessions Judge appointed as
Children’s Judge under the Act of 2005 is empowered to hear POCSO cases and as
such, he heard the instant case and framed the charge against the accused person.
He also submitted that the Court of Addl. District Judge was not functioning at the
relevant point of time and as such, the Sessions Judge was hearing the matter. He
accordingly submits that there is nothing wrong in the order dated 18.06.2025 or
the Sessions Judge, Karbi Anglong, Diphu in hearing the POCSO cases and has
prayed for upholding the impugned order.
ANALYSIS
14. Since the main issue relates to the exercise of power by the learned Sessions
Judge as aforesaid, it is apt to refer to Section 28 of the POCSO Act, which is
reproduced below:-
“28. Designation of Special Courts.–(1) For the purposes of providing a
Page No.# 13/30speedy trial, the State Government shall in consultation with the Chief Justice of
the High Court, by notification in the Official Gazette, designate for each district, a
Court of Session to be a Special Court to try the offences under the Act:
Provided that if a Court of Session is notified as a children’s court under the
Commissions for Protection of Child Rights Act, 2005 (4 of 2006)or a Special Court
designated for similar purposes under any other law for the time being in force,
then, such court shall be deemed to be a Special Court under this section.
(2) While trying an offence under this Act, a Special Court shall also try an
offence [other than the offence referred to in sub-section (1)], with which the
accused may, under the Code of Criminal Procedure, 1973 (2 of 1974) be charged
at the same trial.
(3) The Special Court constituted under this Act, notwithstanding anything in
the Information Technology Act, 2000 (21 of 2000)shall have jurisdiction to try
offences under section 67B of that Act in so far as it relates to publication or
transmission of sexually explicit material depicting children in any act, or conduct
or manner or facilitates abuse of children online.”
15. It is mandated under Section 28 of the POCSO Act, as mentioned above that
the State Government in consultation with the Chief Justice of the High Court, shall
designate a Special Court for each districts to handle POCSO cases and it is further
provided that a Sessions Court would be designated as a Special Court. The proviso
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to Section 28 of the POCSO Acct, clarifies that the Sessions Court which is already
designated as a Children’s Court under the Act of 2005 or a Special Court under
another law, can also serve as Special Court for trying offence under the POCSO
Act. A bare perusal of the said Section reveals that the said provisions were
enacted for speedy trial of cases.
16. It is apposite to mention herein Section 9 of the Cr.PC in order to show the
establishment of Court of Sessions and the power which can be exercised both by
Sessions Court & Addl. Sessions Court. Section 9(2) of the Cr.PC provides that
every Sessions division shall be presided over by a judge to be appointed by the
High Court and Section 9(3) provides that High Court may also appoint Addl.
District Judges and Assistant Sessions Judges to exercise the jurisdiction in Court of
Sessions. However, after coming into effect of the BNSS, 2023 the Assistant
Sessions Judges were excluded and the power vested in the High Court to appoint
Addl. Sessions Judges to exercise the jurisdiction in a Court of Session is provided
for, to the exclusion of the Assistant Sessions Judges.
17. Section 8(3) of the BNSS also provides for appointment of Addl. Sessions
Judge to exercise jurisdiction in the Court of Session. Therefore, both the Sessions
Judges as well Addl. Sessions Judges are Court of Sessions and were empowered
to exercise jurisdiction in a Court of Session.
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18. Section 28 of the POCSO Act, 2012 under caption of Special Courts inter alia
empowers the State Government to designate a Court of Sessions as a Special
Court to try offences under the Act.
19. Apart from the notification that is relied on by the learned Senior Counsel for
the petitioner by which he showed that Addl. Sessions Judge, Karbi Anglong, Diphu
is designated to act as a Fast Track Court to try offences of rape against children,
there is yet another notification being notification No. JDJ/93/2018-ESTT-JUDI/5-D
by which it is provided that on recommendation of the Gauhati High Court on
11.04.2018, the Governor of Assam designated amongst other courts, the Addl.
Sessions Judge, Karbi Anglong, Diphu as Special Court under Section 28 of the
POCSO Act, in addition to the Court of Sessions Judge, which have already
been so designated. As such, it is seen that the Governor of Assam had designated
the Addl. Sessions Judge, KarbiAnglong, Diphu as Special Court under Section 28 of
the POCSO Act in addition to the Sessions Judge who has already been designated
beforehand. Therefore, it is clear that by virtue of notification dated 24.05.2018,
both the Addl. Sessions Judge, Karbi Anglong, Diphu and Sessions Judge, Karbi
Anglong, Diphu had power to try offences under the POCSO Act.
20. As far as the notification dated 22.01.2020 issued by the Registrar General,
Gauhati High Court is concerned, it did not vest the Additional District and Session
Judge, exclusive jurisdiction to try cases under the POCSO Act. It was directed by
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the said notification that the Addl. District & Sessions Judge, which is also
designated as Special Court under Section 28 of the POCSO Act would exclusively
deal with cases under the POCSO Act until further orders and it means that the
Addl. District & Sessions Judge, Karbi Anglong, Diphu will not deal with any other
cases. However, the Court of Sessions is mandated to be appointed as Special
Court in each districts to try offences under Section 28 of the POCSO Act and as
stated above, the Addl. Sessions Judge was designated as a Special Court in
addition to the Sessions Court.
21. In the notification of 22.01.2020 there is a further direction that the pending
cases in the Court of District & Sessions Judge, Karbi Anglong, Diphu under the
POCSO Act may be transferred to the Court of Addl. District & Sessions Judge,
Karbi Anglong, Diphu. However, the jurisdiction vested in the Sessions Court, by
the Act cannot be said to have been taken away by the said notification. It was
provided that pending cases before the District & Sessions Judge may be
transferred to the Addl. District and Sessions Judge which implies that since the
Addl. District & Sessions Judge is exclusively directed to deal with POCSO cases,
the pending cases before the Sessions Judge may be transferred to reduce the
burden of POCSO cases before the Sessions Court. The said notification as such
will not take away the power vested on the Session Judge to try cases under the
POCSO Act given both by the Act as well as the notification dated 24.05.2020. It
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can also be implied that the Addl. District and Session Judge Karbi Anglong, Diphu
has been directed to deal exclusively with POCSO cases until further orders only to
facilitate the speedy disposal of cases, which was the purpose under Section 28 of
the POCSO Act as the said section opens with the said purpose.
22. The notification placed by the learned counsel for respondent No. 2 dated
01.08.2017 by which the Court of District & Sessions Judge in each district is
designated as Children’s Court under Section 25 of the said Act of 2005 also implies
that the District & Sessions Judge, has power to deal with cases under the POCSO
Act by virtue of the proviso under Section 28 of the POCSO Act. It be also stated
here that since the District & Sessions Judges are designated as Children’s Court
and they are also empowered to hear cases under the POCSO Act, it was only to
lessen the burden of the District & Sessions Judge, the further direction is given in
the notification dated 22.01.2020 by which the District & Sessions Judge were
given the option to transfer cases under the POCSO Act to the Addl. District &
Sessions Judge. By no stretch of reasoning, hearing of POCSO cases by Ld.
Sessions Judge can be said to have stopped at any point of time by any
notification. Further it will not be out of context to mention herein that the instant
case is being heard by the Session Judge-cum-Special Judge who was designated
as Special Judge to hear POCSO cases as per law. As such, the hearing of the
instant case by the Session Judge-cum-Special Judge is proper in the eyes of law.
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23. It is noticed that the Session Judge has been appointed as a Children’s Court
under the Act of 2005 under the proviso to Section 28 of the POCSO Act as
mentioned above and in the main provision, the Government of the State is
empowered, with the recommendation of the Chief Justice of the High Court to
designate Sessions Court of a district as Special Court to try offences under the
POCSO Act. It is a settled position of law that the proviso attached to the main
provision is enacted to carve out exceptions, for clarifications or for giving specific
conditions that modifies the main provision. A main provision might state a general
rule while the proviso specifies and explains or gives additional requirement for
certain cases. The proviso is not promulgated for negating the main provision but
for modification of its applications in specific scenarios. The Hon’ble Supreme Court
in Dwarka Prasad Vs. Dwarka Das Saraf, reported in (1976) 1 SCC 128 had
observed that it is settled rule of construction that proviso must prima facie be read
and considered in relation to the primary principle matter to which it is a proviso.
The relevant part is reproduced below,
“A proviso must be limited to the subject-matter of the enacting clause. It is a
settled rule of construction that a proviso must prima facie be read and considered
in relation to the principal matter to which it is a proviso. It is not a separate or
independent enactment. ‘Words are dependent on the principal enacting words, to
which they are tacked as a proviso. They cannot be read as divorced from their
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context’.
If the rule of construction is that prima facie a proviso should be limited in its
operation to the subject-matter of the enacting clause, the stand we have taken is
sound. To expand the enacting clause, inflated by the proviso, sins against the
fundamental rule of construction that a proviso must be considered in relation to
the principal matter to which it stands as a proviso. A proviso ordinarily is but a
proviso, although the golden rule is to read the whole section, inclusive of the
proviso, in such manner that they mutually throw light on each other and result in
a harmonious construction.”
The Supreme Court in yet another decision in Tribhovandas Haribhai Tamboli Vs.
Gujarat Revenue Tribunal and Ors. reported in (1991) 3 SCC 442 had observed that
proviso cannot torn apart from the main enactment and the same may be read
harmoniously. The relevant portion in the said judgment is reproduced below:-
“7. It is a cardinal rule of interpretation that a proviso to a particular
provision of a statute only embraces the field, which is covered by the main
provision. It carves out an exception to the main provision to which it has been
enacted by the proviso and to no other. The proper function of a proviso is to
except and deal with a case which would otherwise fall within the general
language of the main enactment, and its effect is to confine to that case. Where
the language of the main enactment is explicit and unambiguous, the proviso can
Page No.# 20/30have no repercussion on the interpretation of the main enactment, so as to
exclude from it, by implication what clearly falls within its express terms. The
scope of the proviso, therefore, is to carve out an exception to the main enactment
and it excludes something which otherwise would have been within the rule. It has
to operate in the same field and if the language of the main enactment is clear, the
proviso cannot be torn apart from the main enactment nor can it be used to nullify
by implication what the enactment clearly says nor set at naught the real object of
the main enactment, unless the words of the proviso are such that it is its
necessary effect”
24. In Ishverlal Thakorelal Almaula Vs. Motibhai Nagjibhai, reported in AIR 1966
SC 459, the Hon’ble Supreme Court observed that it is not a rule that the proviso
must always be restricted to the ambit of main enactment and at times when the
proviso is unrelated to the subject matter of the main section, the same would be
interpreted as a substantive provision. The relevant portion is quoted herein
below:-
“9. The proper function of a proviso is to except or qualify some thing
enacted in the substantive clause, which but for the proviso should be within
that clause. It may ordinarily be presumed in construing a proviso that it was
intended that the enacting part of the section would have included the subject-
matter of the proviso. But the question is one of interpretation of the proviso
Page No.# 21/30and there is no rule that the proviso must always be restricted to the ambit of
the main enactment. Occasionally in a statute a proviso is unrelated to the
subject-matter of the preceding section, of contains matters extraneous to that
section, and it may have then to be interpreted as a substantive provision,
dealing independently with the matter specified therein, and not as qualifying
the main or the preceding section.”
25. In the instant case, it is noticed that the District & Sessions Judge in each
district has been designated as Children’s Court under Section 25 of the Act of
2005 and the same is designated under the proviso of Section 28 of POCSO Act.
Since it is a rule of law that the proviso has to be read harmoniously with the main
provision and only in exceptional circumstances, the same may become a
substantive provision, the Sessions Judge, Karbi Anglong, Diphu is empowered to
act as a Court for trying cases under POCSO Act as well as under 2005 Act in
addition as Special Courts under Sub-Section 1 of Section 28 of the POCSO Act.
26. It is also a well settled principle of law that the Court cannot read anything
into a statutory provision which is plain and unambiguous. In this context, it is
apposite to refer to the decision passed by the Hon’ble Apex Court in Md.
Shahabuddin Vs. State of Bihar and Ors., reported in (2010) 4 SCC 653 wherein it
was observed that if the language of the enactment is clear and unambiguous, it
would not be proper for the Courts to add any words thereto. The relevant part of
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the said decision is quoted here in below:-
“179. Even otherwise, it is a well-settled principle in law that the court
cannot read anything into a statutory provision which is plain and unambiguous.
The language employed in a statute is a determinative factor of the legislative
intent. If the language of the enactment is clear and unambiguous, it would not be
proper for the courts to add any words thereto and evolve some legislative intent,
not found in the statute. Reference in this regard may be made to a recent
decision of this Court in Ansal Properties & Industries Ltd. v. State of Haryana.
180. Further, it is a well established principle of statutory interpretation that
the legislature is specially precise and careful in its choice of language. Thus, if a
statutory provision is enacted by the legislature, which prescribes a condition at
one place but not at some other place in the same provision, the only reasonable
interpretation which can be resorted to by the courts is that such was the intention
of the legislature and that the provision was consciously enacted in that manner. In
such cases, it will be wrong to presume that such omission was inadvertent or that
by incorporating the condition at one place in the provision the legislature also
intended the condition to be applied at some other place in that provision.”
27. In a further decision of the Hon’ble Apex Court in Kotak Mahindra Bank
Limited Vs. A. Balakrishnan and Ors. it is held as follows:-
“71. It could be seen that Sub-section (22) of Section 19 of the Debt Recovery
Page No.# 23/30Act empowers the Presiding Officer to issue a certificate of recovery along with the
final order, Under Sub-section (20), for payment of debt with interest. The
certificate is given for the purposes of recovery of the amount of debt specified in
the certificate. Sub-section (22A) of Section 19 of the Debt Recovery Act provides
that any Recovery Certificate issued by the Presiding Officer Under Sub-section
(22) shall be deemed to be decree or order of the Court for the purposes of
initiation of winding up proceedings against a company, etc.
72. It is sought to be argued by Shri Viswanathan that the Recovery Certificate is
for the limited purpose of initiation of winding up proceedings. If we accept the
contention of Shri Viswanathan, we would be required to insert the word “limited”
between the words “shall be deemed to be decree or order of the Court” and “for
the purposes of initiation of winding up proceedings”. If the contention is to be
accepted, Sub-section (22A) of Section 19 of the Debt Recovery Act would have to
be reframed as “Any recovery certificate issued by the Presiding Officer Under Sub-
section (22) shall be deemed to be decree or order of the Court for the limited
purposes of initiation of winding up proceedings…”.
73. In our considered view, if we accept the said submission, it would result in
doing violence to the provisions of Sub-section (22A) of Section 19 of the Debt
Recovery Act.
74. It will be apposite to refer to the following observations of this Court in the
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case of Mohd. Shahabuddin v. State of Bihar and Ors.
179. Even otherwise, it is a well-settled principle in law that the court cannot
read anything into a statutory provision which is plain and unambiguous. The
language employed in a statute is a determinative factor of the legislative intent. If
the language of the enactment is clear and unambiguous, it would not be proper
for the courts to add any words thereto and evolve some legislative intent, not
found in the statute. Reference in this regard may be made to a recent decision of
this Court in Ansal Properties & Industries Ltd. v. State of Haryana.
75. It is more than well settled that when the language of a statutory provision is
plain and unambiguous, it is not permissible for the Court to add or subtract words
to a statute or read something into it which is not there. It cannot rewrite or recast
legislation. At the cost of repetition, we observe that if the argument as advanced
by Shri Viswanathan is to be accepted, it will completely change the texture of the
fabric of Sub-section (22A) of Section 19 of the Debt Recovery Act.
76. Though there are umpteen number of authorities to support this proposition,
we do not wish to burden our judgment with them. Suffice it to refer to the
judgment of three-Judge Bench of this Court in the case of Nasiruddin and Ors. v.
Sita Ram Agarwal, wherein this Court has held as under:
37. The court’s jurisdiction to interpret a statute can be invoked when the same is
ambiguous. It is well known that in a given case the court can iron out the fabric
Page No.# 25/30but it cannot change the texture of the fabric. It cannot enlarge the scope of
legislation or intention when the language of the provision is plain and
unambiguous. It cannot add or subtract words to a statute or read something into
it which is not there. It cannot rewrite or recast legislation. It is also necessary to
determine that there exists a presumption that the legislature has not used any
superfluous words. It is well settled that the real intention of the legislation must
be gathered from the language used. It may be true that use of the expression
“shall or may” is not decisive for arriving at a finding as to whether the statute is
directory or mandatory. But the intention of the legislature must be found out from
the scheme of the Act. It is also equally well settled that when negative words are
used the courts will presume that the intention of the legislature was that the
provisions are mandatory in character.”
28. It is provided under Section 28 of the POCSO Act, which is clear without any
ambiguity that the Sessions Court has to be appointed as a Special Court to try
offences under the POCSO Act and if a Sessions Court is designated as a Children’s
Court under the Act of 2005 or any other law, the same may be a Special Court to
try offences under the POCSO Act, shows that it is only a Sessions Court, which
can be appointed as a Special Court to try offences under the POCSO Act which
has been done so by the Government with recommendation of the High Court as
can be seen from the notification dated 24.05.2018. It is seen from the said
Page No.# 26/30notification that Sessions Court were already designated to hear POCSO matters
and the Addl. Sessions Judge of different districts were also designated to hear
POCSO cases which can clearly be seen only for the reason for speedy disposal of
cases. The said purpose is also disclosed by the notification No. JDJ/93/2018-ESTT-
JUDI/5-AA wherein, the Addl. Sessions Judge in districts where there is only one
(1) court of Addl. District & Sessions Judge, was designated as Fast Track Court to
try cases on day to day basis. However, under Section 28 of the POCSO Act, the
relevant notification is notification No. JDJ/93/2018-ESTT-JUDI/5-D wherein, the
Addl. Sessions Judge is empowered along with the Sessions Judge to hear cases
under the POCSO Act. As such, it is concluded that the Sessions Judge has the
power to hear POCSO cases which is as such done in the instant case.
29. The further argument of the respondent No. 2 as well as the counsel for the
State that the Court of Addl. Sessions Judge is not functioning and in view of the
same, the Sessions Judge has taken up the matter, has no relevancy in the instant
case since the Sessions Judge is not denuded of the power. Further, in the
notification dated 22.01.2020 the word used is ‘may’ in the subsequent direction
where the Sessions Judge may transfer POCSO cases to the Addl. Sessions Judge.
This too shows that Sessions Judge does have the power to adjudicate on POCSO
cases and further, under the law both under the BNSS and Cr.PC, the Addl.
Sessions Judge was empowered to exercise jurisdiction in a Court of Session and
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as such, for a speedy trial of case, the Addl. Sessions Judges who were not
otherwise empowered under Section 28 of the POCSO Act is given power to handle
POCSO cases in addition to the Sessions Judge for speedy disposal of cases. As
such, the Sessions Judge-cum-Special Judge, Karbi Anglong, Diphu has rightly
exercised his power in the instant case.
30. In respect of the second submission that charges could not have been
framed in absence of the petitioner, this Court would like to give the following
findings. Section 226 of the Cr.PC provides that when the accused appears or is
brought before the Court in pursuance of the order, the prosecutor shall open his
case describing the charge brought against the accused and would also state to the
accused as to what evidence he would use to prove the guilt of the accused. This
provision shows that the accused has to remain present when the prosecutor will
open his case. Thereafter, under Section 227 of the Cr.PC, it is provided that upon
consideration of the record of the case and documents submitted and after hearing
the submissions of the accused and the prosecution, if the judge considers that
there is no case, he can discharge the accused and record his reasons and
thereafter under Section 228 Cr.PC, the judge on consideration of the materials and
hearing as aforesaid, if he presumes that the accused had committed an offence,
he shall frame in writing a charge against the accused and by virtue of Sub-Section
2 of Section 228, the charge will then be read over and explained to the accused
Page No.# 28/30
and the accused will be asked as to whether he pleads guilty or he claims to be
tried.
31. In respect of the said argument, this Court would like to first quote Section
228 of the Cr.PC, which is reproduced below:-
“228. Framing of charge.–(1) If, after such consideration and hearing as
aforesaid, the Judge is of opinion that there is ground for presuming that the
accused has committed an offence which–
(a) is not exclusively triable by the Court of Session, he may, frame a charge
against the accused and, by order, transfer the case for trial to the Chief Judicial
Magistrate, 3 [or any other Judicial Magistrate of the first class and direct the
accused to appear before the Chief Judicial Magistrate, or, as the case may be, the
Judicial Magistrate of the first class, on such date as he deems fit, and thereupon
such Magistrate] shall try the offence in accordance with the procedure for the trial
of warrant-cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge
against the accused.
(2) Where the Judge frames any charge under clause (b) of sub-section (1),
the charge shall be read and explained to the accused and the accused shall be
asked whether he pleads guilty of the offence charged or claims to be tried.”
Page No.# 29/30
32. It is crystal clear that while opening the case of the prosecution, the
prosecutor will describe the charge to the accused who has to appear or who is
brought before the said Court. This requires the presence of the accused and then
the accused will be heard along with the prosecution and on the documents of the
case, a charge will be framed which will be read over and explained. On a prima
facie reading of the said Sections, the presence of the accused is mandatory.
However, physical presence of the accused can be dispensed with on two (2)
conditions. First, if the accused applies for exemption due to health or valid
reasons and secondly, if the accused is represented by a pleader and the Court is
satisfied that justice will not be compromised. In the case relied upon by the
learned Senior Counsel, it is blatantly clear that the accused person had never
appeared before the Trial Court and as such, the framing of charge in his absence
was considered wrong. In the instant case, it is not shown that the accused never
appeared before the Trial Court. In the impugned order, it is clearly stated that the
reading over of the charge to the accused and explaining to him and asking him
whether he would plead guilty or not is kept for the next date of hearing. Since it is
not mandated under Section 228 of the Cr.PC that accused has to be present when
the charges are framed, the same may not be fatal in the said case.
33. In P.C. Gulati Vs. Lajya Ram Kapur and Ors., reported in AIR 1966 SC 595, it
was observed by the Hon’ble Supreme Court that under Section 273 Cr.PC when
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the trial commence, the accused has to appear or has to be brought before it but it
also provides that he can be represented by the counsels.
34. Under Section 273 of the Cr.PC, it is provided that all the evidence taken in
course of the trial or other proceeding shall be taken in presence of the accused or
where his personal presence is dispensed with, then in presence of his pleader and
that it is a law that the trial starts with reading of the charge by the prosecutor. It
is as such provided that both in case of trial or other proceeding, the accused may
not be present. In the instant case, the accused was not present but his pleader
was there and upon hearing him, the charge was framed. As such, there is no
violation of the law in framing of the charge.
35. In view of the discussions made above, the petition is dismissed without any
cost.
JUDGE
Comparing Assistant