Justice M Nagaprasanna held that repeatedly dragging a child victim to the witness box would amount to an abuse of the process of law, and re-traumatizes the child. Such acts would effectively defeat the protective mandate of the POCSO Act, the court opined.

“…It would have been an altogether different circumstance if the victim had not been cross-examined at all. She has been cross-examined at length on various dates. Therefore, the order permitting recall of the victim for further cross-examination, on the very same instance or on the very same material would undoubtedly become abuse of the process of the law and would re-traumatize the child,” the Court added.

The court, highlighting the child-sensitive adjudication in Sheetal Vasant Thakur v. Chirag Arora by the apex court, opined that the psychological integrity of the child should be an independent and paramount consideration.

“…. When the victim before the Court is a child, the process of justice must never become another wound inflicted in the pursuit of justice…”, the court inferred.

After analysing Sections 311 of the CrPC (power to recall witnesses) and Section 33(5) of the POCSO Act (prevents repeated testimony by a child), the court noted that while Section 33(5) is not an absolute bar, the power under Section 311 must be exercised judiciously, with extreme care and caution, ensuring it does not become a tool of harassment.

Mere observation that recall was necessary 'for ensuring fair trial' is not enough unless there are tangible reasons to show how the fair trial suffered without recall, the Court iterated further by relying on apex court precedents.

“…Victim was 8 years old at the time of the alleged incident and is today 12 years old. This Court cannot ignore the trauma a child would undergo, if there is a rehash of all that had happened on the date of the alleged incident, which would only retraumatize the child. The child would be put to psychological distress”, the court clarified.

The mother of the survivor-child, who was allegedly sexually assaulted by her own father, was the petitioner before the High Court.

To recap, an FIR was registered under Sections 376 and 506 of the IPC, along with Sections 4, 5, and 6 of the POCSO Act against the accused.

The trial before the Fast Track Special Court (FTSC) in Bengaluru was ongoing even after the cross-examination of the survivor. The child was first examined-in-chief on 23.01.2023. However, on 21.02.2023, when she appeared for cross-examination, an adjournment was sought and the child was discharged. Thereafter, a first application under Section 311 of the CrPC was filed by the accused, seeking to recall the victim. The fast track curt allowed this on 16.06.2023, and the survivor was cross-examined across multiple dates, which concluded on 30.09.2023.

Be that as it may, the accused filed a second application under Section 311 five months later, seeking to recall the victim again. According to the accused, during the cross-examination of PW-3 (the survivor's mother), certain material omissions came to light, and there were certain video and voice that the survivor ought to be asked about. On 13.03.2024, the trial court allowed this plea by the accused. Aggrieved, the survivor's mother approached the High Court.

Mother's counsel contended that subjecting the child to repeated cross-examinations was a gross violation of Section 33(5) of the POCSO Act, which mandates that a child must not be called repeatedly to testify. It was argued that the child, who was 8 years old at the time of the incident, had already been subjected to severe mental torture and emotional imbalance during the trial. The state also supported this version of the mother's counsel.

To the contrary, the counsel for the accused argued that there is no absolute bar on recalling a victim. Since the offence called for a punishment of more than 10 years, and since the accused bears the burden of rebutting the presumption under Section 29 of the POCSO Act, recalling the survivor with regards to contradictions and material omissions were necessary, the counsel added.

After hearing both sides, the Court underscored that the victim had already been cross-examined at length after the first application under Section 311 was allowed. According to the court, a second recall based on omissions from a subsequent witness's testimony was not correct.

Hence, the court allowed the writ petition and quashed the trial court order from March 2024 permitting a second recall of the survivor for cross examination.

Appearances-Petitioner: S. Sudharsan, Advocate along with Advocates Sudharshan Suresh, Sainath DM, Pavana NM, Neha Venkatesh & Nandan Patil

Respondents- M.S. Shyam Sundar, Special Public Prosecutor for Respondent No. 1, C.H. Hanumantharaya, Advocate along with Abhinaya K., Advocate for Respondent No. 2