POCSO Act | Prosecution Can Cross Examine The Victim On Her Turning Hostile : Karnataka High Court

A single judge bench of Justice M. Nagaprasanna said,

"In terms of sub-section (2) of Section 33 of the POCSO Act, the Special Public Prosecutor or as the case would be, the counsel appearing for the accused shall, while recording examination-in-chief, cross-examination or re-examination of the child communicates the questions to be put to the child to the Special Court which shall in turn put those questions to the child. Therefore, the victim is permitted to be cross-examined under the POCSO Act itself on her turning hostile which would also cover the situation under sub-section (2) of Section 33 of the POCSO Act."

Case background:

The state government had approached the court challenging an order of the Principal District and Sessions Judge, Chamarajnagar, whereby permission to State to cross-examine the victim on her turning hostile was denied, in a case arising out of the provisions under POSCO Act and Sections 9, 10 and 11 of the Prohibition of Child Marriage Act, 2006.

Advocate Shankar H.S appearing for the state submitted that the impugned order runs counter to law as once the witness turns hostile cross-examination is a right. Merely because the proceedings are under the POCSO Act, the right of cross-examination cannot be taken away as the very Act itself permits such cross-examination.

Court findings:

The bench relied on the decision in Doula V. The State, Criminal Appeal No.100260/2016, where it was held that Section 33 (2) of the POCSO Act is enacted to safeguard and insulate the minor victim from the same. It mandates that while recording the evidence of the child, the Special P.P or as the case may be the counsel for the accuse to communicate to the special court, the question to be put to the victim and the court shall in turn put it to the victim.

On going through the trial court order the bench observed.

"What would unmistakably emerge from a perusal of the impugned order is that it runs counter to Section 33 of the POCSO Act, judgments rendered by the Apex Court and that of this Court and resultantly becomes unsustainable."

It added, "Therefore, the State is to be permitted to cross-examine the victim. But, such cross-examination can be only in terms of Section 33 of the POCSO Act which mandates that while cross-examination questions shall be put to the Court and the Court in turn to put the same questions to the victim. The learned Sessions Judge shall take such care and caution in transmitting the questions to the victim to be in strict consonance with the provisions of the POCSO Act."

Following which the court quashed the impugned order and remitted the matter back to the trial court directing it to permit cross-examination of the victim in accordance with Section 33 of the POCSO Act.

Case Title: State Of Karnataka v. Somanna

Case No:. CRIMINAL PETITION No.8167/2020

Citation: 2022 LiveLaw (Kar) 86

Date of Order: 3RD DAY OF MARCH, 2022

Appearance:. Advocate SHANKAR H.S for petitioner.

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