Karnataka High Court: M Nagaprasanna, J. allowed the petition filed seeking further cross examination of the child victim as the victim has now attained 18 years of age and the rigour given under S. 33(5) Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’ ) is not applicable now.
The petitioner was alleged to have indulged in acts which had become an offence punishable under Sections 4 and 6 POCSO Act and Section 376 of Penal Code, 1860 (‘IPC’). FIR was thereby filed, and the matter is pending consideration before the Sessions Judge. The petitioner filed an application under Section 311 Criminal Procedure Code (‘CrPC’) seeking recall of the victim for further cross-examination which was rejected. Aggrieved by this, an instant petition was filed.
The Court observed that in terms of Section 311 CrPC, a Court may at any stage of any inquiry, trial or other proceeding, recall a witness for re-examination, if his evidence appears to be essential for a just decision in the case.
Placing reliance on V N Patil v. K Niranjan Kumar, (2021) 3 SCC 661 wherein it was observed that the aim of every Court is to discover the truth. Section 311 CrPC is one of such provisions which strengthen the arms of a court in its effort to unearth the truth except where applications are filed as an abuse of the process of law. Such discretion will have to be exercised by the Court.
The Court noted that in terms of Section 33(5) POCSO Act, the Special Court must ensure that the child is not called repeatedly to testify in the Court. A reading of Section 33(5) POCSO Act, would clearly indicate the intention behind such enactment that in genuine cases the child-victim is not harassed. That would not mean that the accused can be deprived of his right to cross-examination in a trial, particularly, where offence punishable is beyond ten years. The mandatory nature to recall the witness for cross examination, if the evidence appears to be essential, is always necessary for a just decision in a case, except in cases where repeated applications under Section 311 CrPC are filed frivolously.
The Court further noted that the other factor that is necessary to be noticed is, the current age of the victim once the victim crosses 18 years of age, the rigour of Section 33(5) POCSO Act gets diluted, as it is the child-victim who shall not be called for cross examination or re-examination repeatedly. The word ‘child’ is defined under Section 2(1)(d) POCSO Act, to mean a person below 18 years of age. On the child reaching 18 years of age, the rigour under Section 33(5) POCSO Act gets diluted and sequentially, will not become a bar for seeking further cross-examination of the victim under Section 311 of the CrPC.
The Court held “the victim ought to have been permitted to be cross-examined by accepting the application seeking to recall the witness”.
[Mahammad Ali Akbar v. State of Karnataka, 2022 SCC OnLine Kar 1048, decided on 06-06-2022]
Advocates who appeared in this case :
Mr Syed Muzakkir Ahmed, Advocate, for the petitioner;
Mrs KP Yashodha, Advocate, for the respondent.
*Arunima Bose, Editorial Assistant has reported this brief.
