S.33(5) POCSO Act | Child Witness Can Be Recalled For Just Decision Of Case; Bar On Special Courts Not Absolute: Kerala High Court

The Kerala High Court on Monday observed that the statutory bar imposed on Special Courts by Section 33(5) of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act') to ensure that a child is not repeatedly called to to testify in the court is not absolute. 

Justice Kauser Edappagath observed,

"The bar under Section 33(5) of POCSO Act is not absolute. In appropriate cases, if it is necessary for the just decision of the case, of course the child witness can be recalled".

The Court went on to hold in this light that the Magistrate has wide power under Section 311 CrPC to recall any witness already examined or to summon any additional witness at any stage of the proceedings for the just decision of the case.

The instant criminal miscellaneous petition was filed by the petitioner-accused to set aside the order of the Additional Sessions Judge dismissing an application filed under Section 311 of CrPC. 

The factual background of the case indicates that the petitioner was accused of offences punishable under Sections 3D r/w 4 of the POCSO Act. The instant plea challenged Special Court's order dismissing the petition filed by the petitioner seeking recall of two prosecution witnesses. 

The Court noted that one of the prosecution witnesses was examined on February 17, 2022, while the other was examined the next day. At that time, copy of the statement recorded under Section 164 of the first witness was not made available to the petitioner, and he only got the same on March 21st, 2022. It was subsequent to this that the application for recalling the witness was filed in order to contradict the 164 statement. 

High Court noted that the Court below had dismissed the application mainly on the ground that child witness could not be repeatedly called for examination as per S.33(5) of the POCSO Act.

It is in this context that the Court observed that the bar imposed by Section 33(5) is not absolute, and that the child witness could be recalled for just decision of cases. 

"Admittedly when PW4 and PW6 were examined, the petitioner did not receive the 164 statement. The petitioner has every right to contradict the witness with the 164 statement. Hence, I am of the view that recalling of the witnesses is necessary for the just decision of the case", the Court observed while allowing the instant petition. 

Advocates P. Rahul and Ashwin Antony appeared on behalf of the petitioner accused in the instant case. The respondent State was represented by Public Prosecutor T.V. Neema. 

Case Title: Vineeth v. State of Kerala 

Citation: 2022 LiveLaw (Ker) 656 

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