Debangana Ray
Published on July 4, 2022 at 19:32 IST
The Madras High Court observing that the accused must be given a fair chance to defend himself, allowed a POCSO accused’s plea for recall of the victim for cross examination.
The court stated that Section 33(5) of POCSO Act was introduced to ensure that the child is not repeatedly called to the court for examination as it would affect the mental health of the child.
In the present case, the victim has attained majority. Hence she can be recalled for cross examination in order to give a last chance to the accused to defend himself.
Justice V. Sivagnanam stated that, “Further illustration Section 33 (5) of the Act is only to ensure that the child should not be repeatedly called for the Court for examining as it would affect the mind of the child. Now, the victim is not a child, and becomes major.”
“Therefore, by invoking Section 33 (5) of Act, to recall a victim for the purpose of cross examination by the accused and in order to give a last chance to the accused to place his defence to make prosecution of criminal proceedings against him, P.W.2 may be recalled and the petitioner may be permitted to cross-examine.”
In the present case, the petitioner was charged under Section 366(A) of the IPC and Section 5(1), r/w 6 of POCSO Act.
The petitioner had filed an application under Section 311 of the CrPC to recall the victim and her mother in order to bring forward contradictions in their statements which could not addressed during cross examination.
The trial court allowed the recalling of the mother but dismissed the plea to recall the victim. The state submitted that the order of the trial court was passed to prevent further harassment of the victim and therefore should not be interfered with.
The court remarked that the complaint was filed by the father as there was a love affair going on between the petitioner and the victim. Also, the victim had attained majority so she can be recalled.
The order of the trail court was set aside. The court directed that the accused could cross examination the victim and the mother on the same day.