<p>The High Court has said that an application, requesting to summon material witness under CrPC section 311, should be ordinarily permitted unless the court concludes that it is a ruse to drag the proceedings or permitting it would become an abuse of the process of the law.</p>.<p>The court made this observation while allowing the petition filed by an accused in a case under provisions of the Protection of Children from Sexual Offences (Pocso) Act.</p>.<p>The petitioner was charged under sections 5 (n), 6, 8 and 12 of the Pocso Act.</p>.<p>He had sought permission to adduce defence evidence on the ground that he could not instruct his lawyer to lead defence evidence since he was in judicial custody.</p>.<p>The accused had moved an application before the trial court seeking to adduce defence evidence after the conclusion of his recording of statement under section 313 of the CrPC, seeking reopening of the case from the stage of adducing the defence evidence. </p>.<p>The trial court rejected the application on the ground that it is the burden of the prosecution to prove the case beyond all reasonable doubt and therefore, examination of the witnesses on the side of the defence does not arise.</p>.<p>Justice Nagaprasanna noted that sections 29 and 30 of the Pocso Act draw presumption of guilt unless the accused is proven innocent.</p>.<p>The court said, “The presumption, however, does not take away the duty of the prosecution to prove the foundational facts beyond all reasonable doubt, it is a reverse burden cast upon the accused under the provisions of the Pocso Act. In the teeth of the allegations under the Pocso Act, the concerned court could not have rejected the application for adducing defence evidence on the specious plea that the burden is on the prosecution to prove the case beyond all reasonable doubt. An application under Section 311 of the CrPC should be ordinarily permitted unless the court comes to conclude that it is a ruse to drag the proceedings or permitting it, would become an abuse of the process of the law".</p>
<p>The High Court has said that an application, requesting to summon material witness under CrPC section 311, should be ordinarily permitted unless the court concludes that it is a ruse to drag the proceedings or permitting it would become an abuse of the process of the law.</p>.<p>The court made this observation while allowing the petition filed by an accused in a case under provisions of the Protection of Children from Sexual Offences (Pocso) Act.</p>.<p>The petitioner was charged under sections 5 (n), 6, 8 and 12 of the Pocso Act.</p>.<p>He had sought permission to adduce defence evidence on the ground that he could not instruct his lawyer to lead defence evidence since he was in judicial custody.</p>.<p>The accused had moved an application before the trial court seeking to adduce defence evidence after the conclusion of his recording of statement under section 313 of the CrPC, seeking reopening of the case from the stage of adducing the defence evidence. </p>.<p>The trial court rejected the application on the ground that it is the burden of the prosecution to prove the case beyond all reasonable doubt and therefore, examination of the witnesses on the side of the defence does not arise.</p>.<p>Justice Nagaprasanna noted that sections 29 and 30 of the Pocso Act draw presumption of guilt unless the accused is proven innocent.</p>.<p>The court said, “The presumption, however, does not take away the duty of the prosecution to prove the foundational facts beyond all reasonable doubt, it is a reverse burden cast upon the accused under the provisions of the Pocso Act. In the teeth of the allegations under the Pocso Act, the concerned court could not have rejected the application for adducing defence evidence on the specious plea that the burden is on the prosecution to prove the case beyond all reasonable doubt. An application under Section 311 of the CrPC should be ordinarily permitted unless the court comes to conclude that it is a ruse to drag the proceedings or permitting it, would become an abuse of the process of the law".</p>