The Gujarat High Court has made it clear that though an accused under the POCSO Act has the right to cross examine the victim, the questions asked by the defence cannot be such that reveal her identity during the trial.
Justice Ilesh J. Vora observed that Section 33 cast a duty upon the Court to ensure that the identity of the child is not disclosed at any time during the course of investigation or trial.
"In such circumstances, the question with regard to husband’s name of the victim and recording the cell number of the victim having been rightly rejected by the Trial Court. It is open for the applicant – accused to examine the witnesses of the service provider by citing the cell number which was used by the victim so as to establish the facts of the CDR."
The petitioner-accused had approached the High Court invoking its extraordinary jurisdiction under Article 226 of the Constitution of India challenging the order dated 08.09.2022 passed by POCSO Court which denied him permission to the accused-applicant to ask certain questions and closed the right of cross-examination of the victim.
The counsel for the applicant, Mr. Nisarg N Jain argued that in order to establish the mobile calls made by the victim, the cell number from which calls were made is required to be brought to the notice of the Court so that the accused can examine calling the service provider of the cell phone.
It was the case of the applicant-accused that while refusing the permission to ask some questions to the victim, the Trial Court should not have closed the right of the cross examination which is the fundamental right of the accused.
The court stated that in light of the obligation cast upon the Court under Section 33 of the POCSO Act, "the question with regard to husband’s name of the victim and recording the cell number of the victim having been rightly rejected by the Trial Court.”
However, it said that the Trial Court erred in closing the right of accused to cross-examine altogether. “The closure of the right of cross examination of the victim is also against the statutory right of the accused to cross examine witnesses.”
Hence, the court directed the trial court to recall the victim and fix the date for further cross examination of the victim on which the applicant-accused shall complete the cross examination.
Case Title: Dhaval Bijalji Thakore v. State of Gujarat