Punjab & Haryana High Court Allows POCSO Accused To Examine UIDAI Official To Disprove Age Of Prosecutrix Based On Aadhar Card Details

The Punjab & Haryana High Court has allowed a man accused of rape and aggravated penetrative sexual assault under Protection of Children from Sexual Offences (POCSO) to examine an official of UIDAI, in an attempt to show that the prosecutrix is not a minor.

In the present case, the accused sought directions to summon a UIDAI official to produce Aadhar details of the prosecutrix, aiming to establish that she was not a minor, and hence a case under POCSO is not made out. However, the State argued that Aadhar cannot be used to verify the date of birth as it is based on self-declared information.

Justice N.S. Shekhawat observed that, "Even though, apparently, the Aadhar card can be exhibited as a proof of identity of Aadhar card holder and may not be be exhibited as proof of birth, however, the date of birth is recorded on the basis of self declaration given by the card holder/respondent. Thus, by producing the Aadhar card record of the prosecutrix, the accused could disprove the case of the prosecution."

The Court further added that even otherwise, the law is well settled that the accused should be given an adequate opportunity to lead his defence evidence and should be permitted to examine the witnesses of his choice to prove his defence unless for the reasons to be recorded, such prayer is made for the purpose of delaying the trial or for defeating the ends of justice.

These observations were made while hearing the plea of a rape accused, seeking directions to the trial Court to summon the witness/concerned official of UIDAI, Regional Office, in view of the amendment to Section 33(1) of the Aadhar Act 2016.

Section 33(1) allows disclosure of information, including identity and authentication records, if ordered by a court not inferior to that of High Court Judge.

Before 2019, the District Judge was also authorized to summon records from UIDAI authority under Section 33 (1) of the Act. However, after the amendment, the term "District Judge" was substituted with "Judge of the High Court.

The counsel for the petitioner submitted that the case under POCSO is not made out against the  prosecutrix because she was not a minor girl and she had produced false record regarding her age.

On the other hand counsel for the complainant argued that Aadhar number could be used for establishing the identity of an individual, subject to authentication and, thereby, per se, it was not a proof of date of birth. Furthermore, he stated that the date of birth was recorded on the basis of the self declaration given by the card holder. Therefore, in case, the dispute regarding the correctness of date of birth, the burden of proof was with the card holder.

Considering the submission, the Court referred to Natasha Singh Vs. Central Bureau of Investigation (2013), wherein it was held that, "Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial."

The bench noted that in order to prove his case the petitioner wanted to summon the witness from UIDAI. In fact, as per settled law, after the recording of the prosecution evidence, the accused is called upon to enter his defence and adduce any evidence, he may have in support thereof.

As per Section 233 of Cr.P.C, if the accused applies for the issue of any process for compelling the attendance of any witness or production of any document or thing, the Court shall issue such process unless he considers, for the reasons to be recorded, that such application should be refused on the ground that it was made for the purpose of vexation or delay or defeating the ends of justice, it added.

Adding that the accused wanted to examine the concerned official of the Regional Office of UIDAI Authority to allow him to produce the relevant record from UIDAI Authority, the Court said, "in the considered opinion of the Court, such evidence may be produced to facilitate a just decision."

Consequently, the Court allowed the plea and directed the trial Court to pass appropriate orders and "facilitate the production of such evidence by summoning the concerned witness in this regard."

Appearance: Mohit Garg, Advocate for the petitioner.

Sheenu Sura, DAG, Haryana.

Varun Issar, Advocate for respondent No. 2.

Ankur Lal, Advocate, for respondent No. 3.

Case Title: Jamshed v. State of Haryana and others

Citation: 2023 LiveLaw (PH) 294

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