S. 33(5) POCSO Act | No Absolute Bar To Recall Child Victim For Further Cross-Examination: Orissa High Court

The Orissa High Court has recently reiterated that there is no absolute bar to recall a child victim under the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act') for the purpose of further cross-examination by the accused.

Reaffirming the position of law, the Single Bench of Justice Sibo Sankar Mishra observed:

“I am of the considered view that there is no absolute bar under Section 33(5) of the POCSO Act to recall a victim-witness, every case has to be weighed on the strength of its own evidence and necessity of recalling the child victim. However, the intention of the legislator is to see that the repeatedly the victim who is a minor shall not be called to the Court in the guise of cross-examination, which would add to the ordeal.”

The petitioner, who is an accused under the POCSO Act, had filed an application under Section 311 of the CrPC seeking to recall the child victim, who was subjected to the sexual assault by the petitioner. However, the Additional District Judge -cum- Special Court under the POCSO Act, Bhadrak had declined to entertain the application.

Being aggrieved by such rejection, the petitioner approached the High Court impugning the order of the trial Court. The counsel for the State argued that there is a bar under Section 33(5) of the POCSO Act to recall the child victim.

However, the senior counsel appearing for the accused-petitioner argued that the bar under Section 33(5) of the Act is not absolute and the same has to be balanced with other statutory rights conferred upon the accused.

For buttressing his contention, he relied upon a number of precedents from different High Courts and submitted that it is no more res integra that for the interest of justice, the child victim can be recalled for further cross-examination. In Pidika Sambaru v. State of Odisha, 2022 LiveLaw (Ori) 21, it was held that –

“The provisions of Section 33 laid down a general principle which must guide the trial Court and is similar to Section 309 Cr.P.C, being in the nature of laws to ensure speedy trial. However, by virtue of Sections 4 and 5 of Cr.P.C, Section 311 Cr.P.C shall prevail as no specific procedure is provided under POCSO Act for recall of a witness. Section 42A of POCSO Act clarifies that the Act is not in derogation of any other Law.”

Reliance was further placed upon the decisions of the Delhi High Court in A through Guardian v. State & Anr. and Vinod Rawat v. State, wherein it was commonly held that a balance of rights under Section 33(5) and Section 311 Cr.P.C. needs to be maintained. The right to fair trial as well as the bar under Section 33(5) both need to be looked into while deciding such application, depending upon facts of each case.

Above all, the senior lawyer also underlined the dictum of the Karnataka High Court in Mahammad Ali Akbar @ Ali Umar v. State of Karnataka, 2022 LiveLaw (Kar) 201 where it was held that in view of the presumption against the accused under Section 29 of the POCSO Act, he must be afforded a reasonable opportunity to cross-examine the victim so as to discharge the heavy burden cast upon him.

Accordingly, having regard for the aforesaid citations, the Court formed the view that there is no 'absolute bar' against recalling a child witness to subject her/him to further cross-examination, if the interest of justice requires the same. However, the same cannot be viewed as a license to frivolously call her/him so as to cause undue harassment.

In the present case, the Court opined that though the application for recall of the witness was maintainable, but the said application deserves to be dismissed on merit as the questionnaire, which is proposed to be placed for cross-examination, contains such questions which were either already put to the victim or completely irrelevant.

Case Title: Tapas Swain @ Tapas Kumar Swain v. State of Orissa & Anr.

Case No: CRLMC No. 1506 of 2024

Date of Judgment: May 17, 2024

Counsel for the Petitioner: Mr. Debi Prasad Dhal, Senior Counsel

Counsel for the State: Mr. P.K. Maharaj, Addl. Standing Counsel

Citation: 2024 LiveLaw (Ori) 45

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