Right Of Accused To Cross-Examine Prosecutrix Can't Always Be Denied Only Because Of Section 33(5), POCSO Act: Uttarakhand High Court

While allowing an application for recall, a Division Bench of Acting-Chief Justice Sanjaya Kumar Mishra and Justice R.C. Khulbe held,

"…it was erroneous on the part of the learned Additional Sessions Judge/FTSC to reject the application to re-call the child witness only on the ground that Sub-Section (5) of Section 33 of the POCSO Act provides that repeated attendance of the child should be avoided. Moreover, an accused, who is arraigned for committing serious offence like rape and penetrative sexual intercourse, should be given an adequate opportunity of cross-examining the witness."

Facts of the Case:

The appellant herein was convicted for the offences under Sections 376(3) and 506 of the Indian Penal Code ('IPC') and Section 3/4 of the POCSO Act. He had filed an appeal and an application under Section 389, Cr.P.C. before the High Court.

During the course of arguments, it was brought to the Court's notice that the victim-girl was not cross-examined at all by the appellant, and his application to re-call the witness for cross-examination was rejected by the learned Trial Judge, on the ground that it is provided under Sub-Section (5) of Section 33 of the POCSO Act that repeated attendance of the child should be avoided.

The Court, after perusing the order-sheet of the Trial Court, found that the case was posted for trial on 09.08.2019. On that day, the examination-in-chief of the victim-girl was taken up. Further, the deposition itself shows that, on that day, the Presiding Officer of the Court of Special Judge POCSO/FTC/ADJ got engaged in some other cases in the midst of the examination of the child witness.

On 26.08.2019, an application for re-calling the child witness was filed by the appellant. However, apparently therefrom that the matter was never taken up by the Court for consideration. It was taken up only after a lapse of about 1½ years, when the said application was dismissed by the Additional Sessions Judge/FTSC. In the meanwhile, the learned Judge presiding the Special Court was transferred.

Court's Observation:

The Court noted that neither the order-sheet, nor the deposition (comments on the deposition), shows that the appellant's lawyer was not ready to cross-examine the child witness on 09.08.2019 when her examination-in-chief was conducted. So, the Court presumed that, on that day, the counsel for the accused-appellant was present, but the Court itself took up other cases for trial etc. leaving the examination of the child halfway.

The Court observed that the learned Judge presiding could have firstly taken up the said case, and only after cross-examination of the victim-girl, she could have engaged herself in other works. Further, the Court expressed disappointment over the fact the child was asked to again report on 14.08.2019 for cross-examination, when on 09.08.2019 itself the entire cross-examination could have been done.

Thus, in view of the above circumstances, it was held that it was 'erroneous' on the part of the Additional Sessions Judge/FTSC to reject the application to re-call the child witness only on the ground that Sub-Section (5) of Section 33 of the POCSO Act provides that repeated attendance of the child should be avoided. Moreover, it was stressed that an accused, who is charged for committing serious offence like rape and penetrative sexual intercourse, should be given an adequate opportunity to cross-examine the witness.

Therefore, in the interest of justice, the Court set aside the order convicting the appellant for the offences under Sections 376(3) and 506 IPC and Section 3/4 of the POCSO Act, 2012. The application dated 26.08.2019 to re-call the child witness was also allowed.

However, the Court added that while cross-examining the child witness on re-call, it shall be obligatory on the part of Additional Sessions Judge/Special Judge, POCSO to apply the principles and directions issued by the Supreme Court in Smruti Tukaram Badade v. State of Maharashtra & Anr., 2022 LiveLaw (SC) 80.

It also directed that while re-calling the child witness for cross-examination, the learned Judge may take into consideration the use of Mobile Van that has been provided by the High Court, along with the State Legal Services Authority, for recording of evidence, if it is considered appropriate by him.

Notably, earlier this month the Orissa High Court had also rendered a similar judgment in Pidika Sambaru v. State of Odisha & Anr, wherein it was held that the right of accused to recall witness under Section 311, Cr.P.C. cannot always be denied only because of the bar under Section 33(5), POCSO Act. Also, recently the Madras High Court, while relying upon Pidika Sambaru (supra), held that the aforesaid bar is not applicable once the prosecutrix attains majority.

Case Title: Mohit v. State of Uttarakhand

Case No.: IA No. 01 of 2021 in Criminal Appeal No. 231 of 2021

Judgment Dated: 24 March 2022

Coram: Acting Chief Justice Sanjaya Kumar Mishra and Justice R.C Khulbe

Authored by: Acting Chief Justice Sanjaya Kumar Mishra

Counsel for the Appellant: Mrs. Neetu Singh, Adv.

Counsel for the Respondent: Mr. J.S. Virk, Deputy Advocate General assisted by Mr. Rakesh Joshi, Adv.

Citation: 2022 LiveLaw (Utt) 12