Courts Not Expected To Form Baseless Apprehensions That Lawyer Will Act Illegally In Discharge Of His Profession: Kerala High Court

The petitioner is alleged to have committed offences under Sections 7, 8, 9(o) & 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), Section 354-A(1)(i) of the Indian Penal Code, Section 75 of the Juvenile Justice (Care and Protection of Children) Act and Section 3(2) (va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. He submitted an application seeking certified copy of the statement of the victim recorded under S. 164 IPC. On this application, the Special Judge passed an order directing the petitioners to file an affidavit stating the copy of the statement will not be misused.

The petitioner challenged this order saying that firstly, he has a statutory right to get the statement of the victim, and secondly, there are adequate safeguards in law to protect the interest of the victim. Therefore, the direction of the special court is an act of imposing onerous and illegal conditions on the petitioner as well as his counsel.

The counsel for the petitioner submitted that the petitioner under S. 207 of Cr.P.C. has a right to get free of cost documents which included the statement recorder under S. 164. Section 31 of the POCSO Act says that the provisions of Cr.P.C shall apply to the proceedings except as provided in the POCSO Act.

The petitioner brought the attention of the court to Section 228-A of Indian Penal Code, Section 23 and 33(7) of POCSO Act, Section 66 & 67 of the Information Technology Act, Section 74 of the Juvenile Justice Act. These provisions are in place to protect the identity of the victim. The counsel then relied on the decisions of Supreme Court in Sakshi v Union of India and Nipun Saxena and Another v Union of India and Others, which laid down the procedures to make the victim feel safe in the court and directions to keep the identity of the victim safe.

The petitioner also submitted that the Bar Council can proceed against any lawyers for misconduct in any form under Chapter V of the Advocates' Act. Thus, the petitioner argued, that the three pillars of the Constitution have taken all safeguards to protect the interests of the victims of sexual offences. Thus, any misuse of the statement of the victim recorded under Section 164 of Cr.P.C by any person including the lawyer concerned is taken care by the statutes and by the direction issued by the Supreme Court.

Agreeing, the High Court observed:

“A Court is not expected to form and apprehension without any foundation that the lawyer may do some illegal acts during the course of his profession. Issuing any proceedings or directions by any court of law without any foundation on the apprehension that the lawyer may do some acts illegally is an interference in the right to practice.”

Accordingly, the proceedings by the Special Court were quashed and the Court made a further direction to the special court to issue the certified copies of statements of the victim to the petitioner.

Counsel for Petitioner: Advocate Renjith B. Marar, Lakshmi N. Kaimal

Counsel for Respondents: Public Prosecutor M. K. Pushpalatha

Citation: 2024 LiveLaw Ker 314

Case Title: Chandra Mouli v State of Kerala

Case No.: Crl. M. C. No. 682 of 2023