POCSO Act | Bar U/S 33(5) To Recall Minor Victim Not Applicable After Her Attaining Majority: Karnataka High Court

A single judge bench of Justice M Nagaprasanna made the observation while allowing the petition filed by a 23-year-old challenging an order of the trial court which had rejected his application to recall the victim for further cross examination, in a case registered against him under sections 376 and 506 of the Indian Penal Code and Sections 4 and 6 of the Act.

"Once the victim crosses 18 years of age, the rigor of Section 33(5) of the 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) of the Act, to mean a person below 18 years of age. On the child attaining 18 years of age, the rigor under Section 33(5) of the Act gets diluted and sequentially, will not become a bar for seeking further cross-examination of the victim under Section 311 of the Cr.P.C.," Court observed.

Further, it was contended that as per the victim's father, in his cross-examination, the petitioner has not committed any sexual act on the victim.

The State opposed the petition, stating that repeated cross-examination or calling of the victim for cross-examination is specifically barred under the statute itself and, therefore, no fault can be found with the order of the learned Sessions Judge in rejecting the said application under Section 311 of the Cr.P.C.

Findings:

The bench referred to the victim's father''s testimony in which he has admitted that there was no sexual act committed on the victim by the petitioner and noted that following which the accused filed an application for recalling the victim.

Further it noted that in terms of Section 311 of the Cr.P.C. a Court may at any stage of any inquiry, trial or other proceeding, recall a witness for re-examination, if his evidence appears to it to be essential for a just decision in the case.

Relying on the apex court judgment in the case of V.N.Patil v. K.Niranjan Kumar, wherein the court held that the aim of every Court is to discover the truth. Section 311 of the Cr.P.C. is one of many 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 bench observed, "The petitioner who is now facing trial for offences punishable under the provisions of the Act, if convicted, would end up with conviction of more than 10 years. In such a case, the accused should be given an opportunity to defend himself, except in cases where an application is filed by adopting dilatory tactics."

It added, "The reason rendered in the application filed is clear that it is filed only after the admission of the father of the victim that there was no sexual act committed by the petitioner on the victim. Therefore, the order rejecting the application despite the soul and spirit of Section 311 Cr.P.C being as is held by the Apex Court is thus rendered unsustainable."

Rejecting the reliance placed on section 33 (5) of the Act by the trial court in rejecting the application, the bench said

"A reading of Section 33(5) of the 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, save in cases where repeated applications under Section 311 of the Cr.P.C. are filed on frivolous reasons."

Noting that on the date of application the victim had turned 18 years of age, the court opined that Section 33(5) bar shall not apply.

"It is more so in cases where the accused is alleged to have committed offences punishable under the Act as there is presumption under Section 29 of the Act against the accused. To bring in evidence contrary to the presumption is a heavy burden cast upon the accused for offences punishable under the Act. Therefore, to rebut such presumption, as also, peculiar reasons in the case at hand, the victim ought to have been permitted to be cross-examined by accepting the application seeking to recall the witness. This would be imperative to see that the trial does not result in miscarriage of justice in any manner and such miscarriage is prevented at any point of spell and juncture," it said.

Accordingly, it allowed the petition and permitted to cross-examine PW-1 on a particular date to be fixed by the learned Sessions Judge as a last opportunity and shall complete cross-examination on that particular date so fixed by the learned Sessions Judge.

It made clear that the accused will not be entitled to filing of repeated applications of the nature under Section 311 of the Cr.P.C

Case Title: MAHAMMAD ALI AKBAR @ ALI UMAR v State of Karnataka

Case No: CRIMINAL PETITION No.4449 OF 2022

Citation: 2022 LiveLaw (Kar) 201

Date of Order: 06TH DAY OF JUNE, 2022

Appearance: Advocate SYED MUZAKKIR AHMED for petitioner; HCGP K.P.YASHODHA for respondent

Click Here To Read/Download Order