No Absolute Bar U/S 33(5) POCSO Act To Recall A Victim Witness; Every Case Must Be Weighed Based On Its Evidence: Orissa HC
The Orissa High Court observed that there is no absolute bar under Section 33(5) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) to recall a victim witness and every case must be weighed based on its evidence and necessity to recall a child victim.
The Court observed thus in an application under Section 482 of the Criminal Procedure Code (CrPC) against the order of the Special Court.
A Single Bench of Justice Sibo Sankar Mishra held, “I am of the considered view that there is no absolute bar under Section 33(5) of the POCSO Act to recall a victim witness, every case has to be weighed on the strength of its own evidence and necessity of recalling the child victim. However, the intention of the legislator is to see that the repeatedly the victim who is a minor shall not be called to the Court in the guise of cross-examination, which would add to the ordeal.”
Senior Advocate D.P. Dhal appeared on behalf of the petitioner while Addl. Standing Counsel P.K. Maharaj appeared on behalf of the opposite parties.
In this case, the petitioner’s application under Section 322 of CrPC seeking recalling of the victim was turned down by the A.D.J.-cum-Special Court under POCSO Act. The counsel for the State submitted that the application under Section 311 of CrPC seeking recalling of the victim witness in a POCSO case is barred under Section 33(5) of the POCSO Act. On the other hand, the counsel for the petitioner contended that it is no more res-Integra that Section 33(5) of POCSO Act does not creates an absolute bar for recalling a witness, who is a minor victim.
The High Court after hearing the arguments of the counsel noted, “… the application moved by the petitioner under Section 311 of Cr.P.C. seeking recalling of the P.W.6/victim although was maintainable, however, on merit; the application deserves to be dismissed … I have perused the proposed questionnaires to be put to the witnesses vis-à-vis the cross-examination conducted by the defence on 07.09.2019. Almost all the questions have already been put to the victim witness and there are certain questions which are completely irrelevant and can be put to other witnesses like the parents of the victim witness or the I.O., etc.”
The Court added that there is a statutory bar under Section 33(5) of the POCSO Act to recall the victim in a POCSO case repeatedly to the Court for the purpose of examination.
“In that view of the matter, I am not inclined to entertain this petition. Since, dismissal of the present petition may not preclude the petitioner from recalling any other witnesses to test the questions as enumerated in the application under Section 311 of Cr.P.C., I am not inclined to interfere in the impugned order”, it said.
Accordingly, the High Court disposed of the petition.
Cause Title- Tapas Swain @ Tapas Kumar Swain v. State of Orissa & Another
