POCSO Act | Bar U/S 33(5) To Recall Minor Victim Not Applicable After Her Attaining Majority: Madras High Court

Madras High Court has held that the bar under Section 33(5) of the POCSO Act against recalling a child (minor victim) is not applicable after such victim attains majority.

Thus, Justice A.D.Jagadish Chandira allowed the accused's plea in the present case registered under the POCSO Act, to cross-examine the victim, who had now turned 21 years of age. It observed,

"in this case, the victim is now aged about 21 years and she will not fall within the definition of "child" so as to Section 33(5) of the POCSO Act, 2012."

The petitioner-accused was charged under Section 366 of IPC, Section 5(l) read with Section 6 of the POCSO Act, 2012 and under Section 9 of the Prohibition of Child Marriage Act 2006. He sought permission to cross-examine PW2/Victim and doctors viz., PW7 and PW8. 

The request was dismissed by the Trial Court on the ground that PW2/victim is a "Child" and that as per Section 33(5) of the POCSO Act, the child witness cannot be called repeatedly to testify in the Court.

Section 33(5) provides: The Special Court shall ensure that the child is not called repeatedly to testify in the court.

Before the High Court, the petitioner-accused contended that on the date of occurrence, PW2/victim was a minor and as of now, she is 21 years old and the bar under Section 33(5) of the POCSO Act will not operate against the petitioner.

At the outset, the court noted Section 29 of the POCSO Act casts a heavy burden on the accused/ petitioner to rebut the presumption of guilt that operates against him. When the petitioner submitted that he had changed the counsel and the earlier counsel was not instructed properly so as to pose vital questions to the witnesses, the court afforded him one more chance to cross-examine the victim as well as the doctors who weren't cross-examined at all yet.

Justice A.D. Jagadish Chandira observed that the victim is now 21 years old and she will not fall within the definition of "child" so as to invoke Section 33(5) of the POCSO Act, 2012. Section 33(5) of the Act only mandates that the child witness cannot be called repeatedly to testify in the Court. Therefore, the court noted in the order that:

"As per Section 29 of the POCSO Act, unless the contrary is proved, the Special Court shall presume that the accused has committed or abetted or attempted to commit the offence as the case may be, unless, the contrary is proved...As stated above, PW2 [victim], PW7 & PW8  [doctors] are crucial witnesses. If the witnesses are not cross-examined, the evidence stands unrebutted and it would amount to a case of no defence resulting in grave prejudice to the petitioner"

The court agreed with the judgment of the Orissa High Court in Pidika Sambaru v. State of Odisha & Anr, 2022 LiveLaw (Ori) 21, a part of which is reproduced below:

"The provisions of Section 33 (of the POCSO Act) laid down a general principle which must guide the trial Court and is similar to Section 309 Cr.P.C, being in the nature of laws to ensure speedy trial. However, by virtue of Sections 4 and 5 of Cr.P.C, Section 311 Cr.P.C shall prevail as no specific procedure is provided under POCSO Act for recall of a witness. Section 42A of POCSO Act clarifies that the Act is not in derogation of any other Law."

Section 311 Cr.P.C talks about the power of the court to summon material witness or examine any person present which is reproduced below:

"Any Court may, at any stage of any inquiry, trial or other proceedings under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or. recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case."

In the judgment cited by Justice A.D Jagadish Chandira, Orissa High Court had relied on the apex court judgment in  Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd. (2017) and noted that it is mandatory for a Court under Section 311 Cr.P.C to recall witnesses for further cross-examination if their evidence appears to be essential for just decision of the case. Karnataka High Court judgment in B.C.Deva @ Dyava v. State of Karnataka (2007) and the Delhi High Court judgment in Mohd. Gulzar v. The State (GNCTD) (2018) were also relied upon in Pidika Sambaru to establish that the right of cross-examination is a valuable right. The court concluded that the child's right under Section 33(5) of the POCSO Act has to be balanced with the aforesaid right of the accused.

Relying on Section 311 Cr. P.C and its interpretation in Pidika Sambaru, Justice A.D Jagadish Chandira set aside the trial court order that dismissed the petition seeking recall of all the witnesses on the ground that the counsel has been changed and the previous counsel was not properly instructed. Before the High Court, the petitioner had argued that change of counsel cannot be a reason for recalling the witnesses.

After stating that the petitioner should file an application before the trial court on the next date of hearing to recall the victim and the doctors for cross-examination and deposit a sum of Rs 6,000/- as costs, the High Court noted as follows:

The Trial Judge shall recall and fix date for their appearance and on such date, the petitioner shall cross-examine the witnesses without any delay. If the petitioner fails to cross-examine the witnesses on the date of their appearance, the petitioner shall loose the chance of further cross-examining the witnesses. Each of the witnesses shall be paid Rs.2,000/- on the date of their appearance before the Trial Court

Case Title: S.Ganeshan v. State Represented by Inspector of Police

Case No: Crl. O.P.No.4131 of 2022 and Crl.M.P.No.2060 of 2022

Citation: 2022 LiveLaw (Mad) 116

[With Inputs From Jyoti Prakash Dutta]

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