The Karnataka High Court has quashed the order passed by the Additional City Civil and Sessions Judge, FTSC- II, Bengaluru observing that the rigours 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 when such survivor turns 18.
A single bench of Justice M. Nagaprasanna passed this order while hearing a petition filed by Mahammad Ali Akbar @ Ali Umar.
The petitioner / accused in Special C.C.No.407 of 2019 before Additional City Civil and Sessions Judge, FTSC – II, Bengaluru arising out of crime registered for offences punishable under Sections 376 and 506 of the IPC and Sections 4 and 5 of the Protection of Children from Sexual Offences Act, 2012 is before the Court calling in question order dated 07-04-2022 rejecting the application filed by him under Section 311 of the CrPC for recalling of PW 1 for further cross- examination.
The facts of the case are that the complainant is the mother of the victim and the petitioner is the son of her husband’s elder sister and are thus, members within the same family. In the month of April 2018, it is alleged that when the parents were not at home, the petitioner had indulged in certain acts on the daughter of the complainant which became an offence punishable under the provisions of the Act.
The petitioner is also alleged to have threatened the victim that if she raises hue and cry he would upload such photographs on social media and that became offence punishable under Section 506 IPC and the alleged sexual acts became offence under Section 376 IPC.
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A crime came to be registered invoking the aforesaid provisions of law.
In the said case, the petitioner filed an application under Section 311 of the CrPC seeking recall of the victim for further cross-examination. This having been rejected by the Sessions Judge, the petitioner has knocked the doors of this Court in the subject petition.
The counsel for the petitioner submitted that further cross-examination is sought for in the light of peculiar facts of the case, as the victim is a member of the family and was in love with the petitioner. Both these facts if elicited from the mouth of the victim, the case against the petitioner would likely end in acquittal as it would become a consensual act or the matter would be settled since the victim is petitioner’s mother’s brother’s daughter.
The counsel further submitted that it is also the case of the father of the victim in his cross-examination that the petitioner has not committed any sexual act on the victim. It is on these grounds he sought recalling of the witness.
The High Court Government Pleader representing the State vehemently refuted the submissions and contended that repeated cross-examination or calling of the victim for cross-examination is specifically barred under the statute itself and, therefore, no fault can be found with the order of the Sessions Judge for rejecting the application under Section 311 of the CrPC.
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The Court observed that after framing of charges against the petitioner the evidence commenced with examination of the victim on 25-04-2019. Later the cross-examination was done on 29-11-2019 and the matter was thereupon listed on certain dates and the Court was closed due to onset of Covid-19 pandemic.
After the resumption of Court, the parents of the victim were examined. Due to the petitioner being in judicial custody right from 03-01-2019, it is the case of the counsel for the petitioner that cross-examination could not be completed by the counsel for manifold reasons.
The Court noted,
A perusal at the cross-examination of the father of the victim would reveal that he has admitted that there was no sexual act committed on the victim by the petitioner. In view of the said deposition, the petitioner files the application for further cross-examination of victim on 28-03-2022 invoking Section 311 of the Cr.P.C. The Court rejects it by an order dated 07-04-2022. The reason for rejection is placing reliance upon Section 33 ( 5 ) of the Act which directs that the victim – child should not be repeatedly brought before the court for tendering evidence.
The petitioner narrates in the application that serious prejudice will be caused to the defence if cross-examination is not permitted of the victim, that too in the light of admission of the father of the victim in his cross-examination that the accused has not committed any sexual act on the victim and also admits about the ill-will between the parents of the accused and the victim. This is turned down by the Sessions Judge by holding that examination-in-chief and cross-examination was over on 09-01-2020 and after two years, the petitioner has filed this application seeking recalling of the witness and that having been specifically barred, no relief can be granted to the petitioner on the application so filed. The other ground on which the application is rejected is that the victim has already been cross-examined at length on two hearing dates and as such no permission can be granted.
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The Court held,
In the light of the judgment of the Apex Court V.N. Patil vs K. Niranjan Kumar (supra), the petitioner who is now facing trial for offences punishable under the provisions of the 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 father of the victim that there was no sexual act committed by the petitioner on the victim. Therefore , the order rejecting the application despite the soul and spirit of Section 311 CrPC being as is held by the Apex Court is thus rendered unsustainable.
The other factor that is necessary to be noticed is the current age of the victim. The counsel for the petitioner has placed on record, the study certificate issued by the school in which the victim had studied. As on 18-01-2019, the victim was about 15 years of age as her date of birth was 02.01.2004. As on date of filing of the application by the petitioner under Section 311 CrPC which was on 28-03-2022, the victim had crossed 18 years of age. Once the victim crosses 18, the rigour 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. The word ‘child’ is defined under Section 2 (1) (d) of the Act, to mean a person below 18 years of age. On the child attaining 18 years of age, the rigour 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. It is more so in cases where the accused is alleged to have committed offences punishable under the Act as there is presumption under Section 29 of the Act against the accused. To bring in evidence contrary to the presumption is a heavy burden cast upon the accused for offences punishable under the Act. Therefore, to rebut such presumption, as also, peculiar reasons in the case at hand, the victim ought to have been permitted to be cross-examined by accepting the application seeking to recall the witness. This would be imperative to see that the trial does not result in miscarriage of justice in any manner and such miscarriage is prevented at any point of spell and juncture.
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The Court passed the following order:
Criminal petition is allowed and the order dated 07.04.2022 passed by the Additional City Civil and Sessions Judge, FTSC- II, Bengaluru stands quashed.
(ii) The application of the petitioner dated 28-03-2022 filed under Section 311 of the CrPC seeking recall of the victim for further cross-examination stands allowed and the petitioner shall be permitted to cross examine victim on a particular date to be fixed by the Sessions Judge as a last opportunity and shall complete cross-examination on that particular date so fixed by the Sessions Judge.
(iii) It is made clear that the accused will not be entitled to filing of repeated applications of the nature under Section 311 of the CrPC.
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