The Karnataka High Court recently held that the rigors of Section 33(5) of the Protection Of Children from Sexual Offences Act (POCSO Act) which bars repeated examination of a child survivor gets diluted such survivor turns 18 [Mahammad Ali Akbar vs State of Karnataka].
As a result, such a survivor can be called to court for further examination Single-judge Justice M Nagaprasanna held.
Once the child attains majority, there isn’t any bar to call her to testify before the court repeatedly, the Court underlined.
“Once the victim crosses 18 years of age, the rigor of Section 33(5) of the Act gets diluted, as it is the child-victim who shall not be called for cross-examination or re-examination repeatedly. On the child attaining 18 years of age, the rigor under Section 33(5) of the Act gets diluted and sequentially, will not become a bar for seeking further cross-examination of the victim under Section 311 of the CrPC,” the judge held.
In the instant case, the judge noted that when the first information report (FIR) was lodged, the girl was 15 year old and now she has turned 18 years.
“A reading of Section 33(5) of the Act would clearly indicate the intention behind such enactment that in genuine cases the child-victim is not harassed. That would not mean that the accused can be deprived of his right to cross-examination in a trial, particularly, where offence punishable is beyond ten years. The mandatory nature to recall the witness for cross-examination, if the evidence appears to be essential, is always necessary for a just decision in a case, save in cases where repeated applications under Section 311 of the CrPC are filed on frivolous reasons,” the Court said in its order passed on June 6.
The bench further clarified that since there is a presumption against the accused in a POCSO case under Section 29 of the Act, it becomes all the more important for the accused to adduce evidence against such presumption.
The bench was seized of a plea challenging orders of a special POCSO court that dismissed the appellant’s plea seeking recall of the victim in the case so that he could further cross-examine her. The special court had relied upon section 33(5) of the POCSO law while dismissing the plea.
However, Justice Nagaprasanna noted the submission of the appellant that the survivor’s father in his testimony before the court had stated that appellant was a relative and never subjected his daughter to any sexual act and that they both loved each other.
“The petitioner, who is now facing trial for offences punishable under the POCSO Act, if convicted, would end up with conviction of more than 10 years. In such a case, the accused should be given an opportunity to defend himself, except in cases where an application is filed by adopting dilatory tactics. The reason rendered in the application filed is clear that it is filed only after the admission of the victim’s father that there was no sexual act committed by him. Therefore, the order rejecting the application despite the soul and spirit of Section 311 Cr.P.C is thus rendered unsustainable,” the judge said.
Hence, recalling the survivor to testify would be imperative to see that the trial does not result in miscarriage of justice in any manner, the Court ruled.
Advocate Syed Muzakkir Ahmed appeared for the accused while the State was represented by Government Pleader K P Yashodha.
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