Special Court Under POCSO Act Must Ensure That Child Victim Is Not Repeatedly Called To Give Testimony: Apex Court

The Bench of Justice Sudhanshu Dhulia and Justice Ahsanuddin Amanullah held, “A bare perusal of Section 33 (5) of the Act indicates that a duty is cast upon the Special Court to ensure that a child is not repeatedly called to give his/her testimony before the court. 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.”

Senior Advocate Anukul Chandra Pradhan appeared for the Petitioner.

The Petitioners-Accused challenged an order passed by the Orissa High Court dismissing their application under Section 482 of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’).

The Petitioners-accused before the Court were facing trial before the Sessions Court arising out of an FIR which was registered under Sections 363, 366, 376 (2) & 109 read with Section 34 of the Indian Penal Code, 1870 and Sections 4, 6 & 17 of the Act read with Sections 9, 10 & 11 of Prohibition of Child Marriage Act, 2006.

It was alleged that Petitioner No. 2 kidnapped the victim girl, who was a minor at that time and brought her to the village of his maternal uncle. It was also alleged by the victim that the other Petitioners-accused, in connivance with Petitioner No. 2, got her married to him at a temple in the village. She was then taken by Petitioner No. 2, with the help of co-accused persons, including the Petitioners, to a village. It was also alleged that Petitioner No. 2 had forcibly made sexual relations with the victim. The victim was ultimately rescued by her parents.

The Petitioners-accused had approached the High Court, assailing the order by which the Special Court rejected their application under Section 311 of Cr. P.C, which was filed for recalling the victim/PW-1 for re-examination as a witness. While rejecting the plea for recall of the victim, the Special Court relied upon Section 33(5) of the Act where the statute itself mandates that a child will not be called in the Court to testify.

The main question for the Court’s consideration was whether in the exercise of its powers under Section 311 of the Cr. P.C, the Special Court ought to have recalled the child/victim for re-examination as a witness, keeping in mind the mandate under Section 33 (5) of the Act.

The Court, while referring to Section 30 of the Act, said that the POCSO Act is a special legislation, that was enacted to protect children from sexual offences and for safeguarding interests and ensuring the well-being of the child at every stage of trial of offences under the Act.

Reference was made to the landmark judgment of the Court in State (NCT of Delhi) v. Shiv Kumar Yadav (2016) which held that 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.

Considering the facts of the case, the Court said, “From a perusal of the record of the case, it is abundantly clear that ample opportunities were given to the defence counsel to cross-examine the victim. 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 the trial of offences under the POCSO Act would defeat the very purpose of the statute. Hence, we find no error or illegality in the impugned order of the High Court or the Order dt. 10.10.2023 of the Special Court.”

Accordingly, the Court dismissed the Petition.

Cause Title: Madhab Chandra Pradhan & Ors. v. State of Odisha

Appearances:

Petitioners: Senior Advocate Anukul Chandra Pradhan, AOR Shakti Kanta Pattanaik, Advocates Aradhana Parmar, Rajni Bala Sharma, Monika Mishra and Sparsh Kanta Nayak.

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