Prosecution Can Cross Examine The Victim Under POCSO

Prosecution Can Cross Examine The Victim Under Pocso On Her Turning Hostile: High Court Of Karnataka

A Subject Petition was filed by the State (Petitioner), challenging the order dated 16.09.2019 passed by the Principal District and Sessions Judge, Chamarajnagar. The learned Sessions Judge declined to give permission to the State to cross examine the victim when she turns hostile during the trial. The case of the victim was arising out of the provisions of the Protection of Children from Sexual Offences Act (POCSO), 2012, Indian Penal Code (IPC), 1860 and Prohibition of Child Marriage Act, 2006.

Brief Facts of the Case:

A complaint was registered against 10 accused persons, alleging 9 of the 10 accused persons that they had full-fledged knowledge of the rest one (Main) accused person marrying a victim, who was a minor girl at the time of marriage and he had committed sexual assault on her many a times. The accused persons were charged or the offences punishable under Sec-376(n) read with Sec-34 of the IPC, Sec-4, Sec-6, Sec-8, Sec-12 and Sec-17 of the POCSO Act and Sec-9, Sec-10 and Sec-11 of the Prohibition of Child Marriage Act. During the trial, while recording of evidence of witnesses the victim turns hostile. On her turning hostile, the State asks for the permission from the Learned Sessions Judge to cross-examine the witness. However, the learned Sessions Judge declined the permission for cross-examination and hence, the State reaches to the High Court of Karnataka and filed the Subject Petition for the same.

Petitioner’s Arguments:

  1. State argued that the order passed on 16.09.2019 for not permitting the prosecution to cross-examine the victim on turning hostile, runs counter to law as once the witness turns hostile; cross-examination is right.
  2. They further argued that merely because the proceedings were under the POCSO Act, the right of cross-examination cannot be taken away as the Act itself permits such cross-examination.
  3. They submitted that State should be allowed and be permitted to cross-examine the victim.

Observation of the Court:

  1. Court considered the only issue that is “Whether the victim under the POCSO Act, can be permitted to be cross-examined once she turns hostile or not?” Court gave appropriate notice to the Sec-33 of POCSO Act which deals with the Procedure and Powers of the Special Court.
  2. Referring the case of Nipun Saxena vs. Union of India (2019) 2 SCC, in which Apex Court while interpreting Sec-33 of POCSO Act, held that any litigant who enters the court feels intimidated by the atmosphere of the court. Children who have been subjected to sexual assault are virtually overwhelmed by the atmosphere in the courts. They are scared. They are so nervous that they, sometimes, are not even able to describe the nature of the crime accurately. When they are cross-examined in a hostile and intimidatory manner then the nervousness increases and the truth does not come out. It is, therefore, imperative that we should have courts which are child-friendly. Sec-33(4) of POCSO Act enjoins on the Special Court to ensure that there is child-friendly atmosphere in court.
  3. Court followed the judgement of the case of Goutam and others vs. The State of Karnataka, it was held that Sec-33(2) of the POCSO case Act states that the Special Public Prosecutor or the defence counsel while recording evidence, can re-examine or cross-examine the child victim by communicating and putting questions through the Special Court which further put those questions to the child. That means the defence or the prosecution has no right of direct examination or cross-examination of the victim child.
  4. Court held that what would unmistakably emerge from a perusal of the impugned order is that it runs counter to Section 33 of the POSCO Act. Court also said that the State should be permitted to cross-examine the victim. But such cross-examination can only be done according to the Procedure and Powers mention under Section 33 of the POSCO Act. It mandates that while cross-examination questions shall be put to the Court and the Court in turn to put the same questions to the victim.
  5. Court remitted back the matter to the hands of the learned Sessions Judge dealing with the matter to permit cross-examination of the victim strictly in accordance with Sec-33 of the POCSO Act. The petition was allowed and order dated 16.09.2019 stands quashed.

Vaishali Jain, Advocate & Associate – POSH at Work & Riddhima Khanna

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