Whether the court can permit accused to recall prosecutrix/ victim in an offence Under POCSO Act?

Of course, as per Section 33 of the POCSO Act, the  prosecutrix/victim and shall not be called frequently for cross-examination by the Court. However, that does not mean there shall not be any opportunity given to the accused for the

purpose of prosecution cross-examination of the prosecution

witness. {Para 6}

7. Of course, there was a defect on the part of the

learned counsel for the accused for not cross-examined the

prosecution witness and he sought time. However, the Court at

first instance, though rejected ought to have considered

sympathetically and allowed the applicant to cross-examine

P.W.1.

8. This Court in a catena of decisions held that fair

trial is a fundamental right which is guaranteed under Article 21

of the Constitution of India. Of course, the trial is to be

concluded within one year under the POCSO Act. The delay

should be curtailed but that does not mean the Court should

allow cross-examination without giving a fair opportunity to the

accused to defend the case. The trial Court ought to have

given one more opportunity to the petitioner for

cross-examination of the witness. Accordingly, the order of the

trial Court deserves to be set aside.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

CRIMINAL PETITION NO. 3987 OF 2022

SRI. JAYANNA B @ JAYARAM Vs  STATE OF KARNATAKA 

BEFORE

 Coram: MR JUSTICE K.NATARAJAN

DATED:  13TH DAY OF FEBRUARY, 2023

Looking to facts and circumstances of the case, issuance

of notice to respondent No.2 is dispensed with.

2. This petition is filed by the petitioner-accused under

Section 482 of Cr.P.C. setting aside the order of dismissal of

the application under Section 311 of Cr.P.C filed by the learned

counsel for the petitioner for recalling of PW-1/victim in

Spl.Case.No.510/2017 vide order dated 18.04.2022 for the

offences punishable under Sections 4 and 8 of the Protection of

Children from Sexual Offences Act, 2012 (for short ‘POCSO’

Act)

3. Heard Sri.M.R.Nanjunda Gowda, learned counsel for

the petitioner and the Sri.R.D.Renukaradhya, learned High

Court Government Pleader for the respondent No.1-State.

Perused the materials on record.

4. The case of the prosecution is that the petitioneraccused

is facing trial before the Special Court (POCSO Court)

for the offences punishable under Sections 4 and 8 of the

POCSO Act. The P.W.1/victim prosecutrix the

cross-examination as P.W.1 and she said to be remained

absent for cross-examination and the Police have brought her

back for cross-examination. Learned counsel for the petitioner

is said to have sought some adjournment for cross-examination

which came to be rejected and cross-examination of P.W.1 was

taken as ‘nil.’ Thereafter, the application filed by the learned

counsel for the petitioner for recalling P.W.1 for the purpose of

cross-examination came to be rejected and the matter was

posted for final arguments, which is under challenge.

5. Heard the arguments of learned counsel for the

petitioner and learned HCGP for respondent No.1-State.

Perused the order sheet. Especially, the order sheet and the

deposition of P.W.1 reveals that the evidence of the prosecutrix

examination-in-chief has been completed. Subsequently, the

witness is not present and she has been traced by the Police

and brought before the Court for the purpose of crossexamination.

At that time, learned counsel for the petitioner

sought some adjournment which came to be refused and

rejected by the trial Court, and the cross-examination of P.W.1

taken as ‘nil’. Thereafter, the application filed by the petitioner

came to be dismissed.

6. Of course, as per Section 33 of the POCSO Act, the

prosecutrix/victim and shall not be called frequently for cross-examination by the Court. However, that does not mean there

shall not be any opportunity given to the accused for the

purpose of prosecution cross-examination of the prosecution

witness.

7. Of course, there was a defect on the part of the

learned counsel for the accused for not cross-examined the

prosecution witness and he sought time. However, the Court at

first instance, though rejected ought to have considered

sympathetically and allowed the applicant to cross-examine

P.W.1.

8. This Court in a catena of decisions held that fair

trial is a fundamental right which is guaranteed under Article 21

of the Constitution of India. Of course, the trial is to be

concluded within one year under the POCSO Act. The delay

should be curtailed but that does not mean the Court should

allow cross-examination without giving a fair opportunity to the

accused to defend the case. The trial Court ought to have

given one more opportunity to the petitioner for

cross-examination of the witness. Accordingly, the order of the

trial Court deserves to be set aside.

The petition is allowed. The order of the trial Court

rejecting the application for recalling P.W.1 is hereby set aside.

The application is allowed with a cost of Rs.2,000/-.

It is needless to say that learned counsel for the

petitioner shall not seek any adjournment when P.W.1 is

present before the Court for cross-examination.

Accordingly, the petition is disposed of.

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