GAURAV UPADHYAYA v. THE STATE OF ASSAM & Ors.

ORDER Heard Mr. I. Choudhury, learned Senior Counsel assisted by Mr. A. Ahmed, learned counsel for the petitioner. Also heard Mr. A.A. Mir, learned counsel for the respondent No. 2 and Mr. K.K. Parashar, learned Addl. Public Prosecutor for the respondent No. 1.

2. This is an application filed under Section 528 of the BNS, 2023, read with Article 227 of the Constitution of India, by which the petitioner has challenged the Order dated 26.09.2025 passed by the learned Sessions Judge, Karbi Anglong, Diphu in POCSO Case No. 37/2021, whereby the learned Sessions Judge, Karbi Anglong, Diphu rejected the prayer of the petitioner to defer the recording of the plea of the accused in absence of the learned Special Public Prosecutor.

3. Mr. I. Choudhury, learned Senior Counsel for the petitioner has placed the Order dated 26.09.2025, which shows that the charges were already framed on

18.06.2025 and for explaining the charges to the accused, the matter was taken up on the said day. On the said day, an application was made by the accused person with a prayer that since the learned Special Public Prosecutor, who was appointed for trial of the POCSO case was suffering from various ailments, the case may be deferred for recording the plea of the accused till a new Special Public Prosecutor is appointed by the Government.

4. Mr. I. Choudhury, learned Senior Counsel also submits that by that time, the learned Special Public Prosecutor had resigned from the job. However, the Page No.# 3/7 said prayer was rejected by the learned Court on the ground that even though the learned Special Public Prosecutor was appointed for trial of the POCSO cases, however, due to ailments, he could not appear and since the learned Addl. Public Prosecutor was attached to the Court, the learned Court decided to take up the matter and rejected the prayer made by the accused person. The learned Court made an observation in the said order that charges had already been framed and the case was taken up only for recording the plea of the accused person and for that purpose, the presence of the learned Special Public Prosecutor was not found obligatory. As such, the charges were read over and explained to the accused person under Section 354/354A IPC and Section 10 of the POCSO Act, 2012, to which he had pleaded not guilty and claim to be tried. Thereafter, the Court fixed the matter on 29.10.2025 for pre-trial hearing.

5. Mr. I. Choudhury, learned Senior Counsel also submits that under Section 32 of the POCSO Act, 2012, it is provided that the Special Public Prosecutor has to be appointed by notification in the Official Gazette for every special Court for conducting cases under the provisions of this Act and he has also placed the definition of the Special Public Prosecutor provided in Clause (m) to Section 2 of the said Act, which meant that a Public Prosecutor appointed under Section 32 of the said Act. As such, he submits that there is no rider in the said Section and there cannot be any conclusion that apart from Special Public Prosecutor, any other Public Prosecutor can conduct cases under the POCSO Act, 2012. He has also placed the earlier Order dated 27.01.2025, by which the Special Judge, POCSO, Karbi Anglong, Diphu for absence of the learned Special Public Prosecutor had deferred the case for hearing on charge to a subsequent date. He as such submits that the Order dated 26.09.2025 is bad in law, inasmuch as, without the presence of the Special Public Prosecutor, the charges were read Page No.# 4/7 over and explained to the accused person, to which the accused pleaded not guilty and claimed to be tried.

6. To substantiate his argument, he has relied on the Judgment delivered by the Hon’ble Supreme Court in the case of Alarming Rise in the Number of Reported Child Rape Incidents, In re, reported in (2020) 7 SCC 130, by which the Hon’ble Supreme Court had observed that Section 32 of the POCSO Act has to be followed and Special Public Prosecutor has to be appointed to conduct cases under the POCSO Act. He also placed reliance on the Judgment in the case of Ramchandra Keshav Adke (Dead) by Lrs Others Vs. Govind Joti Chavare, reported in (1975) 1 SCC 559, by which the Hon’ble Supreme Court has reiterated the position that if an act has to be done in a particular manner as provided under the law, the same has to be done in the said manner or not at all.

7. Per contra, A.A. Mir, learned counsel for the respondent No. 2 submits that while framing of charge, the learned Special Public Prosecutor was present and it is only when the charges were read over subsequently and explained to the accused on 26.09.2025, the learned Special Public Prosecutor was not present and the same would not be fatal in such a case.

8. To substantiate his argument, he placed reliance on Section 226 of the Cr.PC, where it is provided that after commitment of the case, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused and then he placed Section 228(2), where it is provided that where the Judge frames the charge, the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence, charge or claims to be tried. He submits that at this stage, the role of the learned Special Public Page No.# 5/7 Prosecutor is to the extent very limited and that it is the duty of the Judge, who frames the charge to explain the same to the accused person and as such, absence of the learned Special Public Prosecutor would not bring any negative impact on the said case. Moreover, he submits that while framing the charge, the learned Special Public Prosecutor was there, but while explaining it, his presence is not required as per the law and that, moreover, since the learned Special Public Prosecutor was ill, the presence of the learned Addl. Public Prosecutor was considered to be good enough.

9. I have heard the learned counsels for the parties and have gone through the records.

10. Under Section 32 of the POCSO Act, 2012, it is provided that the State Government by notification in the Official Gazette, shall appoint Special Public Prosecutor for every Special Court for conducting cases only under the provisions of the said Act and it is further provided that every person appointed as Special Public Prosecutor under the said Section shall be deemed to be a Public Prosecutor within the provisions of the Cr.PC. It is as such seen that it is mandatory that the State Government shall appoint a Special Public Prosecutor for every Special Court. The word used is ‘shall’ in the said Section and the appointment is made for conducting cases only under the provisions of the POCSO Act. It is seen in the instant case that the Special Public Prosecutor was appointed to conduct the case under the said Act in respect of the said case. It is only that the said Special Public Prosecutor was suffering from some ailment and he could not appear before the Court on various dates.

11. It is provided under the law that a trial is to be conducted by the Public Prosecutor as provided under Section 225 of the Cr.PC and under Section 226 of the said code, it is the Prosecutor who shall open the case by describing the Page No.# 6/7 charge brought against the accused person and by stating by what evidence he proposes to prove the guilt of the accused. Thereafter, under Section 227 of the Cr.PC, the Judge if after hearing submissions of the accused and the prosecution and upon consideration of the record of the case, considers that there is no sufficient ground for proceeding, he shall discharge the accused and record his reasons for doing so. Thereafter, under Section 228 of the Cr.PC, if the Judge, upon consideration and hearing as mentioned above, is of the opinion that there is ground for presuming that the accused has committed an offence, shall frame a charge against the accused and proceed as required. Section 228(2) of the Cr.PC, further provides that if the Judge frames the charge, the charge shall be read and explained to the accused and accused shall be asked as to whether he pleads guilty of the offence charged or claims to be tried. It is as such noticed that the trial starts with the opening of the case by the prosecutor and charges are framed in the process and the trial continues. In the instant case, while framing of charge, the Special Public Prosecutor was present and it is the mandate of law, moreso, under Section 32 of the POCSO Act, 2012 that the Special Public Prosecutor shall conduct cases only under the provision of the said Act.

12. It is a natural corollary that the Special Public Prosecutor should be present in each and every stage during the trial of the offence under the POCSO Act and it cannot by any stretch be said that an Addl. Public Prosecutor may take up his role during the trial of the offence. It will not be out of context to mention herein that under Section 31 of the POCSO Act, the provisions of Cr.PC is applicable to the proceedings before the Special Court. Therefore, it is concluded that in absence of the Special Public Prosecutor, the Order dated

26.09.2025, by which the charge was read over to the accused person and was Page No.# 7/7 explained to him to which he had pleaded not guilty and claims to be tried is not according to the mandate of law.

13. As such, the Order dated 26.09.2025 passed by the learned Sessions Judge, Karbi Anglong, Diphu in Special POCSO Case No. 37/2021 is set aside and it is further directed that the learned Court may proceed with the case only in presence of the Special Public Prosecutor appointed under Section 32 of the POCSO Act.

14. Petition is disposed of. JUDGE Comparing Assistant