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FACTS:
The accused is charged with Section 366 of IPC, Section 5(l) r/w Section 6 of the POCSO Act, 2012 and under Section 9 of the Prohibition of Child Marriage Act 2006.
NEED | The accused had applied for cross-examination of the victim and other witnesses.
REJECTION | The Special Court rejected his plea for cross-examination on the ground that a child witness cannot be repeatedly called in the Court.
PLEA |Now, before the High Court the accused has raised a plea that the victim is now of 21 years of age and therefore no more a minor.
ISSUE RAISED:
Whether a minor victim can be recalled to court after attaining majority?
LAW APPLICABLE:
Section 33 of the Prevention of Children from Sexual Offences Act, 2012 deals with procedure and powers of Special Court. Section 33(5) in particular provides that the Special Court shall ensure that the child is not called repeatedly to testify in the court.
Section 2(d) of the POCSO Act, 2012 defines "child" as any person below the age of eighteen years.
Section 29 of the Prevention of Children from Sexual Offences Act, 2012 provides for presumption as to certain offences. As per the provision where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.
Section 311 of the Code of Criminal Procedure, 1973 provides for power to summon material witness, or examine person present. As per the provision, any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.
DECISION:
The Madras High Court allowed the accused to re-examine the witness. The High Court observed:
As per Section 29 of the POCSO Act, unless the contrary is proved, the Special Court shall presume that the accused has committed or abetted or attempted to commit the offence as the case may be. In view of the above, a heavy burden is caused on the petitioner to rebut the presumption which operates against him.
In view of the peculiar facts and circumstances of the instant case, this Court is of the opinion that, a chance should be given to the petitioner to recall witnesses who have not been cross-examined so far.
OTHER RELEVANT JUDGEMENTS: In Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd, the Supreme Court held the following with regards to Section 311 of CrPC: The section is manifestly in two parts. Whereas the word used in the first part is "may", the second part uses "shall". In consequence, the first part gives purely discretionary authority to a criminal court and enables it at any stage of an enquiry, trial or proceeding under the Code
(a) to summon anyone as a witness, or (b) to examine any person present in the court, or (c) to recall and reexamine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case… It is not only the prerogative but also the plain duty of a court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject.
