Case Note & Summary
The petitioner, Shubham Vilas Tayade, filed a Criminal Writ Petition before the Bombay High Court, Nagpur Bench, challenging two orders passed by the Special Court, Pusad, under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The first order dated 2nd March 2016 allowed the prosecution's application to record the evidence of the victim (a child). The second order dated 18th December 2017 allowed the petitioner's application to obtain copies of the audio-video recording of the victim's statement and deferred the recording of the victim's evidence until such copies were supplied. The petitioner argued that the first order was contrary to Section 35 of the POCSO Act, which requires recording of child evidence within 30 days of cognizance, and that the Special Court did not record reasons for the delay. The State opposed the challenge, noting that the petitioner had not objected to the prosecution's application at the time and had merely submitted to the court's discretion. The High Court held that the petitioner's failure to object to the application (exhibit 24) and his submission of 'Suitable order may kindly be passed' amounted to a waiver of his right to challenge the order later. Even on merits, the court observed that while Section 35 requires reasons for delay, the omission was only an irregularity, not a fatal defect, especially since no prejudice was shown. Regarding the second order, the court found that the petitioner was entitled to copies of the audio-video recording under Section 207 of the Code of Criminal Procedure, 1973, and the Special Court's decision to defer the victim's evidence until supply was proper. Consequently, the High Court dismissed the writ petition, upholding both orders of the Special Court.
Headnote
A) Criminal Procedure - Challenge to Orders - Waiver - Petitioner who did not object to prosecution's application for recording victim's evidence and left it to court's discretion cannot later challenge the order allowing such recording - Held that by not resisting the application, petitioner gave up right to object (Paras 5-6). B) POCSO Act - Section 35 - Recording of Child Evidence - Delay - Section 35 of Protection of Children from Sexual Offences Act, 2012 allows recording of child's evidence after 30 days from cognizance, provided court records reasons for delay - Failure to record reasons is an irregularity curable if no prejudice caused to accused - Held that in absence of specific objection, irregularity does not vitiate the order (Para 7). C) Criminal Procedure - Right to Fair Trial - Audio-Video Recording - Accused has right to obtain copies of audio-video recording of victim's statement under Section 207 CrPC - Denial of such copies and deferral of victim's evidence until supply is justified - Held that order granting copies and deferring evidence is proper and not subject to challenge (Paras 8-9).
Issue of Consideration
Whether the Special Court's order allowing recording of victim's evidence after 30 days without recording reasons is valid, and whether the petitioner can challenge it after not objecting at the time.
Final Decision
The High Court dismissed the writ petition, upholding both orders of the Special Court. The challenge to the order dated 2nd March 2016 was rejected due to petitioner's failure to object at the time, and the order dated 18th December 2017 was found to be proper.
Law Points
- Failure to object at trial stage waives right to challenge order
- Section 35 POCSO Act allows recording of child evidence after 30 days with reasons for delay
- Irregularity in not recording reasons is curable if no prejudice shown
