'Right To Cross-Examination Part Of Right To Fair Trial': Chhattisgarh High Court Allows Plea Of Accused To Recall Prosecutrix In POCSO Case

The Chhattisgarh High Court recently held that the right to cross-examination is a part of right to fair trial which every person has in the spirit of right to life and personal liberty. Justice Rajani Dubey thus set aside the decision of the lower court and permitted the re-examination of the prosecutrix in a POCSO case.

An appeal was filed by the accused, challenging the order of the Special Judge (POCSO Act) rejecting an application filed by him under Section 311 of CrPC, for recalling the prosecutrix and her parents.

The petitioner is facing trial under Sections 363, 366, and 376 of the IPC along with Section 5(1) and 6 of the POCSO Act, 2012. The incidents relate to 2018 when the prosecutrix was examined. However, now after having attained majority the prosecutrix has again approached the petitioner for having a love affair with him, it was alleged.

She also allegedly informed the petitioner that she had given the statement against him under undue pressure from family members. On the basis of the same, the petitioner filed an application under Section 311 of the CrPC, 1973 for the re-examination of the prosecutrix and her parents.

However, the Court below rejected the application.

The petitioner contended that the impugned order was passed without appreciating the fact that the statement of the prosecutrix was recorded under duress, and in 2021 she had turned major.

The Court referred to the case of Manju Devi v. State of Rajasthan where it was held that,

"The power conferred under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as "any Court", "at any stage", or "or any enquiry, trial or other proceedings", "any person" and "any such person" clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way."

Therefore, it was held that the determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case.

In the instant case, the Court noted that the ground of re-examination is that earlier the statement of the prosecutrix was recorded under duress but the trial court dismissed the application, ignoring the said fact. The Court noted that the court must have allowed the petition by exercising the jurisdiction under Section 311 of CrPC

Case Title: Manish Sonkar v. The State of Chhattisgarh

Citation: 2022 LiveLaw (Chh) 17

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