S.33(5) POCSO Act Does Not Mean Accused Will Not Be Given Any Opportunity To Cross- Examine Prosecutrix: Karnataka High Court

A single judge bench of Justice K Natarajan observed,

“Of course, as per Section 33 of the POCSO Act, the prosecutrix/victim shall not be called frequently for cross examination by the Court. However, that does not mean there shall not be any opportunity given to the accused for the purpose of cross-examination of the prosecution witness.”

The petitioner was booked under Section 4 and 8 of the POCSO Act. The prosecutrix, after examination-in-chief, was not present and she had to be traced by the Police and brought before the Court for the purpose of cross-examination. However, at that time the counsel for the petitioner sought some adjournment which came to be refused. Moreover, cross-examination of the prosecutrix was taken as ‘nil’. Thereafter, petitioner's application to recall the witness under section 311 CrPC came to be dismissed.

On going through the records the bench said “Of course, there was a defect on the part of the learned counsel for the accused for not cross-examined the prosecution witness and he sought time. However, the Court at first instance, though rejected, ought to have considered sympathetically and allowed the applicant to cross-examine P.W.1.”

Noting that this court in a catena of decisions held that fair trial is a fundamental right which is guaranteed under Article 21 of the Constitution of India, the bench observed “Of course, the trial is to be concluded within one year under the POCSO Act. The delay should be curtailed but that does not mean the Court should allow cross-examination without giving a fair opportunity to the accused to defend the case.”

Then it held “The trial Court ought to have given one more opportunity to the petitioner for cross-examination of the witness. Accordingly, the order of the trial Court deserves to be set aside.”

The court allowed the application with a cost of Rs.2,000 and clarified that counsel for the petitioner shall not seek any adjournment when the victim is present before the Court for cross-examination.

Case Title: Jayanna B @ Jayaram And State of Karnataka

Case No: CRIMINAL PETITION NO. 3987 OF 2022

Citation: 2023 LiveLaw (Kar) 88

Date of Order: Advocate M.R Nanjunda Gowda for petitioner.

HCGP R.D Renukaradhya FOR R1