Rigor Of S.33(5) Of POCSO Act Gets Diluted Once Victim Attains Majority: Madras High Court Reiterates

Observing that the accused must be given an opportunity to place his defence, the Madras High court recently allowed a POCSO accused's plea for recall of the victim for cross examination. The court explained that Section 33 (5) of the Act was introduced only to ensure that the child should not be repeatedly called to the Court for examining as it would affect the mind of the child. In the present case, the victim was no longer a child and had attained majority. Hence, the victim could be called for cross examination to give a last chance to the accused to give his defence.Justice V.Sivagnanam observed as follows: Further illustration Section 33 (5) of the Act is only to ensure that the child should not be repeatedly called for the Court for examining as it would affect the mind of the child. Now, the victim is not a child, and becomes major. Therefore, by invoking Section 33 (5) of Act, to recall a victim for the purpose of cross examination by the accused and in order to give a last chance to the accused to place his defence to make prosecution of criminal proceedings against him, P.W.2 may be recalled and the petitioner may be permitted to cross-examine.In the present case, the Petitioner was charged for the offences under Sections 366 (A) of IPC and Section 5(1), r/w 6 of POCSO Act. He had filed application under Section 311 Cr.P.C to recall the victim and her mother to bring forward certain contradictions in their statements which could not be addressed at the time of cross examination. The trial court allowed recalling of the mother of the victim and at the same time dismissed the petition for recalling the victim. The State submitted that the order of the trial court was only passed to avoid further harassment of the victim girl and hence no interference warranted. The court remarked that the complaint was filed by the father of the victim due to an alleged love affair between the petitioner and the victim. It was also admitted that the petitioner who was 17 year old at the time of the incident was now become major. Therefore, the accused should be given a chance to prove his case. Thus, the order of the trial court dismissing the petition for cross examination was set aside. The court directed that the accused could cross examination the victim and her mother on the same day and also directed him to pay the cost to the witnesses.Related Read: POCSO Act | Bar U/S 33(5) To Recall Minor Victim Not Applicable After Her Attaining Majority: Madras High Court Case Title: Sankar v. State Case No: CRL.O.P (MD) No.11427 of 2022 Citation: 2022 LiveLaw (Mad) 281 Counsel for the Petitioner: Mr.R.Karunanidhi Counsel for the Respondent: Mr.R.Suresh Kumar, Government Advocate (Crl.Side)Click here to read/download the judgment

Rigor Of S.33(5) Of POCSO Act Gets Diluted Once Victim Attains Majority: Madras High Court Reiterates

Upasana Sajeev

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