Mitali Palnitkar
Published on: March 1, 2022 at 18:07 IST
The Chhattisgarh High Court held that ‘Right to Cross-examination’ is a part of ‘Right to Fair Trial’ which is guaranteed to every person in the spirit of ‘Right to Life and Personal Liberty’.
The decision of the Lower Court was set aside by Justice Rajani Dubey. She allowed the Re-examination of the Prosecutrix in a POCSO (Protection of Children from Sexual Offences) Case.
The Accused had filed an Appeal challenging the Special Judge Order (POCSO Act) which rejected an Application filed by him under Section 311 of Criminal Procedure Code (CrPC), 1973; for re-examination of the Prosecutrix and her parents.
The Petitioner is facing Trial under Sections 363, 366 and 376 of the Indian Penal Code along with Sections 5(1) and 6 of the POCSO Act, 2012.
The Prosecutrix was examined in 2018. However, it is alleged that after attaining majority she approached the Petitioner for having a love affair with him.
It is alleged that the Prosecutrix informed the Petitioner that she gave a statement against him under ‘Undue Pressure’ from family members. Therefore, an Application was filed by the Petitioner.
However, the Lower Court rejected the Application. Thereafter, the Petitioner contended that the Impugned Order was passed without considering that the statement of Prosecutrix was recorded under duress, and that she turned major in 2021.
The Court relied on the Case of Manju Devi v State of Rajasthan wherein it was held that “The power conferred under Section 311 CrPC must therefore, be invoked by the Court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection.”
It was further held that the Provisions of Section 311 of the Code do not limit the discretion of the Court in any way. Thus, the question was whether the summoning of the Witness is essential to deliver a Just decision.
In this Case, the Court noted that the ground for Re-examination is the previous statement of the Prosecutrix recorded under duress. This fact was ignored and the Application was dismissed by the Trial Court.
The Court observed that the Trial Court should have allowed the Petition by exercising Jurisdiction under Section 311 of the Criminal Procedure Code.