POCSO Act | Child Victim Of Traumatic Sexual Assault Must Not Be Repeatedly Called To Testify In Court : Supreme Court

Recently, the Supreme Court dismissed the plea of an accused in a case under the Protection of Children from Sexual Offences (POCSO) Act of 2012 ("POCSO Act") seeking recall of the victim under Section 311 of CrPC who was already cross-examined by the defence.

The Court said that once the defence was granted ample opportunities to cross-examine the victim than the victim could not be recalled for further cross-examination as it would defeat the purpose of the POCSO Act.

“When the victim has been examined and then cross-examined at length twice already, mechanically allowing an application for recall of the victim, especially in trial of offences under the POCSO Act would defeat the very purpose of the statute.”, the bench comprising Justices Sudhanshu Dhulia and Ahsanuddin Amanullah observed.

The Court's observation was based on the textual interpretation of Section 33 (5) of the POCSO Act, which casts a duty upon the Special Court to ensure that a child is not repeatedly called to give his/her testimony before the court. It is to ensure that the child who has suffered a traumatic experience of sexual assault is not called time and again to testify about the same incident.

"The legislative intent behind this provision is clear. It is to ensure that the child who has suffered a traumatic experience of sexual assault is not called time and again to testify about the same incident."

Also, a clarification was made by the Court that although Section 33(5) doesn't create an absolute bar to recall the victim for re-examination as a witness, each case must be looked at in the context of its facts and circumstances.

Reference was made to the case of State (NCT of Delhi) v. Shiv Kumar Yadav reported in (2016) 2 SCC 402, where the Court succinctly summed up the principles that would guide the exercise of a Court's power under Section 311 of the Cr.P.C.

“It was laid down by this Court (in Shiv Kumar Yadav' case) that first, the plea for recall of a witness under Section 311 must be bona fide and genuine. Secondly, applications for recall of a witness under Section 311 should not be allowed as a matter of course and the discretion given to the Court must be exercised judiciously, not arbitrarily.”, the Court said.

Upon finding that ample opportunities were given to the defence counsel to cross-examine the victim, the Court held it would not be in the interest of justice to allow the recall application of the accused/appellant.

Accordingly, the Special Leave Petition filed by the accused was dismissed.

Appearance

For Petitioner(s) Mr. Shakti Kanta Pattanaik, AOR Mr. Anukul Chandra Pradhan, Sr. Adv. Ms. Aradhana Parmar, Adv, Adv. Ms. Rajni Bala Sharma, Adv, Adv. Dr. Monika Mishra, Adv, Adv. Mr. Sparsh Kanta Nayak, Adv, Adv.

For Respondent(s) None

Case Details: MADHAB CHANDRA PRADHAN & ORS. Versus STATE OF ODISHA, SPECIAL LEAVE PETITION (CRL.) No. 10082 OF 2024

Citation : 2024 LiveLaw (SC) 615

Click here to read/download the order