# Vikas Singh & Ors. Revisionists v. State of U.P. & Anr

- **Citation:** (2019) 3 ILRA 390
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-19
- **Case number:** Criminal Revision No. 1385 of 2019
- **Bench:** Vikas Kunvar Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vikas-singh-ors-revisionists-v-state-of-u-p-anr-44759
- **Pages:** 6

## Headnote

A. Criminal Law -Protection of Children
from Sexual Offences Act, 2012 - Section 38
- Indian Penal Code, 1860 - S ection 376D -
application-providing
the
help
of
interpreter to the seven year old victim for
recording the evidence- challenge to -
violation of section 38-interpreter can only
be provided to a physically or mentally
disabled person - disability is quite a
distinct thing from inability - providing
interpreter to a child who is unable to
communicate is not to be treated as
disabled
person-the
word
'unable
to
communicate' are in consonance with the
provision of section 119 Evidence Act.

B. Criminal Law -Code of Criminal
Procedure, 1973 - Section 397(2) -
application-bar as to admissibility -
interlocutory order cannot be amenable
in revision u/s 397 as providing the
interpreter is not the final order-final
order culminates the proceeding as a
whole or finally decides the right and
liability of the parties.
 (Para 2,12,13,17 to 24)
Revision dismissed (E-6)

List of cases cited:-

## Text

390 INDIAN LAW REPORTS ALLAHABAD SERIES

9. Certify this judgment to the lower
Court immediately.
----------
(2019)11ILR A390

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 19.10.2019

BEFORE
THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Criminal Revision No. 1385 of 2019

Vikas Singh & Ors. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Parmeshwar Dutt Tewari, Sri Kamlesh
Kumari, Sri Vijay Kumar Tiwari

Counsel for the Opposite Parties:
Government Advocate

A. Criminal Law -Protection of Children
from Sexual Offences Act, 2012 - Section 38
- Indian Penal Code, 1860 - S ection 376D -
application-providing
the
help
of
interpreter to the seven year old victim for
recording the evidence- challenge to -
violation of section 38-interpreter can only
be provided to a physically or mentally
disabled person - disability is quite a
distinct thing from inability - providing
interpreter to a child who is unable to
communicate is not to be treated as
disabled
person-the
word
'unable
to
communicate' are in consonance with the
provision of section 119 Evidence Act.

B. Criminal Law -Code of Criminal
Procedure, 1973 - Section 397(2) -
application-bar as to admissibility -
interlocutory order cannot be amenable
in revision u/s 397 as providing the
interpreter is not the final order-final
order culminates the proceeding as a
whole or finally decides the right and
liability of the parties.
 (Para 2,12,13,17 to 24)
Revision dismissed (E-6)

List of cases cited:-

1. M/s Bhaskar Industries Limited Vs. Bhiwani Denim
and Apparels Ltd. And Ors, AIR (2001) SC 3625

2. K.K. Patel and Ors Vs. State of Gujrat, AIR
(2000) SC 3346

(Delivered by Hon'ble Vikas Kunvar Srivastav, J.)

1. The present revision is moved on
behalf of the accused-applicants involved
in Case Crime No. 287 of 2017, under
Section 376-D Indian Penal Code, 1860
and Section 7/8 of Protection of Children
from
Sexual
Offences
Act,
2012
(hereinafter which shall be referred as
'POCSO' in short), Police Station PGI,
District Lucknow. The revision is directed
against the order of Addl. Sessions
Judge/Special
Judge
POCSO
Act,
Lucknow
dated
22.07.2019,
made
Annexure no. 1 to this revision.

2. Heard learned counsel for the
revisionists,
learned
Additional
Government Advocate for the State on the
point of admission of the revision.
Learned
A.G.A.
termed
the
order,
impugned in this revision, in nature,
'interlocutory order'. He further argued,
since revision is moved under Section
397/401 of the Code of Criminal
Procedure, 1973, therefore there is a bar
as to the admissibility contained under
sub Section (2) of Section 397 Cr.P.C.

3. For easy reference Section 397
(2) is quoted below:.

"(2) The powers of revision
conferred by sub- section (1) shall not be
exercised in relation to any interlocutory
order passed in any appeal, inquiry, trial
or
other
proceeding."
3 All. Vikas Singh & Ors.Vs. State of U.P. & Anr.
391

4. Learned A.G.A. argued that in
view of the aforesaid Clause (2) of
Section 397 Cr.P.C., there is a clear bar
on the admissibility of the revision, being
moved against an interlocutory order,
hence must be dismissed at the very stage
of admission.

5.

Learned
counsel
for
the
revisionists, despite the contention of
learned A.G.A. as to the bar on
admissibility
of
revision,
without
addressing the issue, emphasized on the
point that the impugned order is passed
by the Special Court, in utter violation of
the law, misconstruing the provisions of
Section 38 of the POCSO Act which
occasioned a serious illegality, causing
grave injustice to the accused-revisionist,
hence the revision lies and impugned
order is liable to be interfered exercising
power of revision by the Court.

6. In the light of arguments,
examined the impugned order alongwith
the other materials, placed on record,
whether it is passed misconstruing the
provisions of Section 38 of the POCSO
Act read with the relevant provision of
Indian Evidence Act, 1872, applicable to
recording of the statement of a victim of
sexual offences, during trial.

7. Before discussing the arguments,
raised by learned counsel for the
revisionists, it would be helpful in
judging the legality of the order to look
into the facts of the incident, as well as
proceeding of the trial before Special
court.

8. The First Information Report,
briefly stating, discloses that the victim, 5
years' old girl-child, was being sexually
abused in the premises of her school
"Allen House Public School," Vrindavan
Yojna, Lucknow. She, in the age of 4
years, got admission in the said school.
On 10.05.2017, the informant lodged First
Information
Report
when
she
(the
mother) noticed that intermittently her
daughter suffers sickness with complaint
of burning and difficulty while urinating.
At the relevant time of lodging the FIR,
the child was of 5 years in age. She
noticed further that private part of her
daughter has some swelling. When she
asked the daughter, her reply disclosed
that in her school a bhaiya of elder age,
who had magic tricks and stories of
fairies, on the pretext of entertaining her
with magic and stories, used to insert
fingers and some other things in her
private part. She further told that there
were several boys elder in age, students of
Class-10, who used to be dressed like her
father, also taken her in a room in the
school premises where an aunty caught
her hold from back and then those elder
boys inserted finger and some other
things in her private part. Several other
like allegations made in the FIR were
investigated.
The
accused-revisionists
came into picture as one of the culprits.
Naturally, a case alongwith relevant
Sections of the Indian Penal Code and
Section 3/4 of the 'Prevention of Children
from Sexual Offences Act, 2012' were
slapped against the accused-revisionist.
During trial, by Special Judge, in the
course of recording evidence, the victim
child who at the relevant time grew old of
7 years, when subjected to question in
cross examination as to the incident how
happened with her, the court and the
parents felt that she is unable to
communicate her answer due to lisping
tongue as well as to understand the
question in their true sense and answer
them. Consequent thereupon, on the
392 INDIAN LAW REPORTS ALLAHABAD SERIES
application of the parents, learned court
exercised it's jurisdiction under Section
38 of the POCSO Act and ordered to
provide the victim an 'interpreter' on the
cost of the informant.

9. This order, providing the help of
interpretor to the aforesaid victim, is
challenged in this revision on the ground
that 'interpretor' can only be provided to a
physically or mentally disabled person
and not to a person who is free from such
ailments or disability. Submission of
learned counsel is that learned Special
Judge, going beyond the power given to
him under Section 38 of the POCSO Act,
has provided the help of interpreter to the
victim during cross-examination, which is
illegal.

10. The vehemence of the argument
is only upon the said fact. Learned
counsel has avoided to argue on the point
that whether the impugned order, which is
passed in the proceeding so as to make
furtherance of the proceeding, can be
challenged in the revision despite a bar
under Section 397(2) of the Cr.P.C.

11. In the wake of insisting
argument of learned counsel for the
revisionist, the point raised as to the
illegality of the order, is taken first to
consider, whether the learned court
exercised its jurisdiction beyond the
power vested in it under the POCSO Act
and therefore the said order is illegal.

12.

For
easy
reference
and
convenience, Section 38 of the POCSO
Act is quoted hereunder:

"(1) Wherever necessary, the
Court may take the assistance of a
translator or interpreter having such
qualifications,
experience
and
on
payment of such fees as may be
prescribed, while recording the evidence
of the child.

(2) If a child has a mental or
physical disability, the Special Court may
take the assistance of a special educator
or any person familiar with the manner of
communication of the child or an expert
in that field, having such qualifications,
experience and on payment of such fees
as may be prescribed to record the
evidence of the child."

13.

Obviously
the
aforesaid
provision of Section 38 of POCSO Act is
having two parts. The vehemence of the
argument by learned counsel for the
revisionists is upon sub Section (2) of
Section 38 of the POCSO Act. Reading
over Clause 2 of Section 38 of the Act,
learned counsel emphasized that unless
the girl suffers from any physical or
mental disability, the 'interpreter' could
not be given to her. Arguing on the point
as to over exercise of the jurisdiction,
learned counsel ignored sub Section (1) of
Section 38 of the POCSO Act where the
opening words used are "Wherever
necessary", the Court may take the
assistance of a translator or interpreter
having such qualifications, experience
and on payment of such fees as may be
prescribed, while recording the evidence
of the child". The said words 'wherever
necessary' emanate the Court to exercise
it's discretion in appropriate case.

14. Under the POCSO Act, the
'child' is defined as a person below the
age of 18 years. The term therefore
includes child being newly born or of
tender age from months to years below
the age of 18 years. A child having the
age of adolescence or a child due to lack
3 All. Vikas Singh & Ors.Vs. State of U.P. & Anr.
393
of sufficient vocabulary of a particular
language or having no acquaintance with the
dialect of the language being used by the
speaker may be unable to speak, understand
or communicate in that particular language.
The child may or may not know the words
used by other person making conversation
with him/her. Even the nature, true
meaning/sense of conversation being made
to him/her by another person would not be
assessable by the child. "To communicate"
with any person who is talking with him/her
in a particular language, even if known by
reason of immaturity of mind would not be
understandable to a child. Naturally, he or
she would feel 'unable to communicate' with
the speaker. These all and other like things
make a child 'unable to communicate'.

15. In the present case the girl being
a child of tender age (7 years) when
subjected to examination in Court for
recording her evidence as victim, the
questions made to her by some one else
(in the present case the defence counsel),
to whom she had earlier never heard
might have felt herself "unable to
understand"
the
questions.
Even
if
understandable to her, she might have felt
'inability to communicate' properly and
correctly, by reason of lack of vocabulary
and lisping tongue. The trouble of the
child when noticed by the parents and
Court, it made them apprehensive of
recording of incorrect evidence of the
child. In such circumstance, it always
would be necessary for the Court to
endevour the witness to make him/her
expressive of thoughts running in the
mind while trying to answer the question
in true sense and aspect of the fact.

16. The opening words of Section
38(1) "whenever necessary" signify the
discretion of the court to be exercised in
any such circumstance while recording
the evidence of a child. The court on the
application of the parents or on its own
observation
may
gather
from
the
circumstance which necessitate to provide
a translator or the interpreter as the case
may be.

The difference between 'Unable'
and 'Disable'

17. Considering the argument of
learned counsel as to the word used in
Section 38(2) of the Act to circumspect
the necessity for providing help of
translator/interpreter to a child while
recording the evidence in the case of
'disability' of a child (mental or physical
disability), it would not be out of
relevance to mention that sub Section (1)
of Section 38 does not use the word
'disable'. There is a lot of difference
between the words 'unable' and 'disable'.
In the present context, it would be
necessary to see that both the words have
different
meaning.
'Unable'
literally
means a person who is not able while
'disable' means a person incapable of
using body part by the action. It clearly
means that the 'disability' is quite a
distinct thing from 'inability'. One can
take example of a child (person) who is
dumb/deaf, mentally sick or a person
suffering from any other such incapacity
to hear, speak or communicate is called
severe form of "disability". Section 38(2)
of the POCSO Act applies to such
persons, whereas Section 38(1) of the
POCSO Act applies to a child who is not
disable but 'unable to communicate'. The
words pronounced by a child varies
according to her age. In the present case
the victim at the relevant time of
recording of evidence in Court is 7 years
old with lisping tongue, naturally she
394 INDIAN LAW REPORTS ALLAHABAD SERIES
would be unable to communicate or any
communication made to her by other
person, would be much difficult than that
made to a well grown child reaching to
age of 18 years.

Section 38(1) of POCSO Act in
consonance with proviso to amended
provision of Section 119 Evidence Act

18. Further, the POCSO Act came
into force on 03.02.2013. Section 38 of
the Act when came into operation, the
provision of Evidence Act, 1872 was also
amended. Before the amendment, Section
119 of the Evidence Act was as under:

"[Dumb witnesses- a witness who
is unable to speak may give his evidence in
any other manner in which he can make it
intelligible, as by writing or by signs; but
such writing must be written and the signs
made in open Court. Evidence so given shall
be deemed to be oral evidence."]"

19. Section 119 in The Indian
Evidence Act, 1872 as amended vide
amending Act no. 13 of 2013 w.e.f.
03.02.2013 runs as under:

[119.
Witness
unable
to
communicate verbally-A witness who is
unable to speak may give his evidence in
any other manner in which he can make it
intelligible, as by writing or by signs; but
such writing must be written and the signs
made in open Court. Evidence so given
shall be deemed to be oral evidence:

provided that if the witness is
unable to communicate verbally, the court
shall take the assistance of an interpreter
or a special educator in recording the
statement, and such statement shall be
videographed.

20. On perusal of the amended and
unamended Section of the Evidence Act,
1872, it can clearly be seen that after
03.02.2013 when the amended Act came
into force, Section 38(1) of POCSO Act
in it's spirit and effect seems to have taken
place in the proviso of amended provision
of Section 119. It is note worthy that
amended Section 119 of the Evidence Act
in it's proviso, uses the words 'unable to
communicate verbally', the words 'unable
to communicate' are in consonance with
Section 38 (1) of the POCSO Act.

21. As such, on the basis of above
discussion, the argument of learned
counsel for the revisionists that the court
below while passing the impugned order
went beyond the jurisdiction vested in it
and wrongly exercised his power to
appoint interpreter for victim-child, aged
about 7 years, during cross-examination,
is incorrect, baseless and suffers from
misconception as to the provisions of
Evidence Act and the relevant Section 38
of the POCSO Act. In my view courts are
made competent under Section 38(1) of
POCSO Act read with proviso appended
to Section 119 of the Evidence Act (as
amended vide Act No. 13 of 2013, w.e.f.
03.02.2013) to provide help of translator
or interpreter as the case may be in
appropriate cases, to a victim child who is
unable to communicate verbally, while
recording evidence.

22. Coming on the second point as
to the bar of Section 397 (2) of the
Cr.P.C., undoubtedly on bare reading of
the
impugned
order
providing
the
interpreter, to the child subjected to crossexamination by a well skilled advocate in
defence, is not a final order. Nothing is
doing,
when
this
order
exists,
to
culminate the proceeding or finally decide
3 All. Valajindra Kumar Vs. State of U.P. & Anr.
395
the right of the accused, adversely affecting
his defence. In deciding whether an order
challenged is interlocutory or not so far as
Section 397(2) Cr.P.C. is concerned, the sole
test is not whether such order was passed
during the interim stage, if the order, under
challenge,
culminates
the
criminal
proceeding as a whole or finally decided the
right and liability of the parties then the order
passed is not interlocutory. This is laid down
by Hon'ble Apex Court in the case of M/s
Bhaskar Industries Limited Vs. Bhiwani
Denim and Apparels Ltd. and Others
reported in [AIR 2001 SC 3625] and in the
case of K.K. Patel and others Vs. State of
Gujrat [AIR 2000 SC 3346].

23. The impugned order is purely
interlocutory which cannot be amenable
in revision under Section 397 Cr.P.C. and
suffers from the bar under Sub-Section
(2) of Section 397 Cr.P.C.

24. On the above two scores, I
find that the revision is not admissible
and, therefore, the same is dismissed at
the very threshold.
----------

(2019)11ILR A395

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATEDALLAHABAD 12.09.2019

BEFORE
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Criminal Revision No. 1472 of 2014

Valajindra Kumar ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Devraj Rajvedi, Sri Amit Kumar
Srivastava, Sri Krishna Datta Tiwari, Sri
B.K. Srivastava, Ms. Pooja Srivastava, Sri
Rahul Chaturvedi

Counsel for the Opposite Parties:
A.G.A, Sri Satyendra Narayan Singh, Sri
Subhash Chandra Pandey, Sri Varinder
Singh

A. Civil Law- Juvenile Justice (Care and
Protection of Children) Act, 2015 -
Section 94 - Determination of age of
juvenile - Age of juvenile can be
determined on the basis of high school
certificate/marks-sheet or school record
if there is no doubt with regards to
genuineness and authenticity thereof -
Court
has
to
be
sure
about
the
genuineness and authenticity of such
certificate/marks-sheet,
particularly
when there is sufficient material on
record
to
create
doubt
on
such
certificate/marks-sheet :- When there
arises
reasonable
doubt
in
respect
thereof, the same cannot be relied blindly
and the court is empowered under law to
ignore the same - Accused cannot be
allowed to abuse the statutory protection
by attempting to prove himself as a minor
when the documentary evidence to prove
his minority gives rise to a reasonable
doubt about his assertion of minority.
(Para 13, 14)

Held:- Whatever information was provided
with regards to the education of Mandeep
Singh was highly suspicious and contradictory.
In view of contradictions in school record of
Mandeep, the JJ Board, finding no other
option determined the age on the basis of the
medical evidence - Juvenile Justice Board,
declared the age of Mandeep Singh to be 20
years and 4 months on the basis of medical
report after deducting one year from the age
determined in medical report. (Para 19)

Criminal revision dismissed (E-5)
List of Cases Cited: -