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2024 Supreme(SC) 916
SUPREME COURT OF INDIA
SUDHANSHU DHULIA, AHSANUDDIN AMANULLAH, JJ.
Madhab Chandra Pradhan - Appellant
Versus
State of Odisha - Respondent
SLP (Crl.) No.10082 of 2024
Decided On : 05-08-2024
For Petitioner(s) Mr. Shakti Kanta Pattanaik, AOR Mr. Anukul Chandra Pradhan, Sr. Adv. Ms. Aradhana Parmar, Adv, Adv. Ms. Rajni Bala Sharma, Adv, Adv. Dr. Monika Mishra, Adv, Adv. Mr. Sparsh Kanta Nayak, Adv, Adv.
IMPORTANT POINT
The POCSO Act mandates that child witnesses should not be repeatedly called to testify, ensuring their protection during trials.
Headnote:
POCSO - Special Court - POCSO Act, 2012 Sections 33(5), IPC Sections 363, 366, 376(2), 109 - The court emphasized the protective measures for child witnesses under the POCSO Act, particularly the prohibition against repeated testimonies, influencing the decision to deny the recall of the victim for re-examination.
Fact of the Case:
The petitioners are accused of kidnapping and sexually assaulting a minor girl, leading to a trial under the POCSO Act and IPC. They sought to recall the victim for re-examination after she had already been cross-examined twice.
Finding of the Court:
The court upheld the Special Court's decision to deny the recall of the victim, citing the POCSO Act's provisions aimed at protecting child witnesses from repeated testimonies.
Issues: Whether the Special Court erred in denying the petitioners' application to recall the victim for re-examination under Section 311 of the Cr.P.C. in light of Section 33(5) of the POCSO Act.
Ratio Decidendi: The court ruled that while Section 33(5) of the POCSO Act does not create an absolute bar against recalling a witness, the circumstances of each case must be considered, and the victim had already been adequately cross-examined.
Result: The Special Leave Petition filed by the petitioners is dismissed.
ORDER :
1. The petitioners before this Court are facing trial before the Additional Sessions Judge-cum-Special Court under POCSO Act, Nayagarh (hereinafter ‘Special Court’) in Special G.R. Case No.100 of 2020, arising out of FIR No.245 of 2020, registered under Sections 363, 366, 376(2) & 109 read with Section 34 of the Indian Penal Code, 1870 and Sections 4, 6 & 17 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter ‘the Act’) read with Sections 9, 10 & 11 of Prohibition of Child Marriage Act, 2006.
2. In a nutshell, the allegations against the petitioners are that on 30.08.2020, petitioner No.2 herein (arrayed as Accused No.2 in the FIR) kidnapped the victim girl, who was a minor at that time, and brought her to the village of his maternal uncle. It is also alleged by the victim that the other petitioners-accused, in connivance with petitioner No.2, got her married to him at a Devi Temple of the village. She was then taken by petitioner No.2, with the help of co-accused persons, including the petitioners herein, to village-Rahama in the Jagatsinghpur District, Odisha. During this period i.e., of 7-8 days, the victim was with the petitioner No.2. It is also alleged that petitioner No.2 had forcibly made sexual relations with the victim. The victim was ultimately rescued by her parents on 18.11.2020 with the help of the officials of Police Station-Ranpur. She was then brought to P.S.- Ranpur and was first examined by the police and then her statement under Section 164 of the Cr.P.C. was recorded before the jurisdictional Magistrate. Thereafter, she was sent for medical examination at the Ranpur Hospital. The victim also produced her D.O.B. certificate, as per which her D.O.B. is 14.03.2005.
3. The petitioners have challenged the order dated 15.05.2024 passed by the High Court of Orissa, by which their application filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter ‘Cr.P.C.’) was dismissed. The petitioners had approached the High Court, assailing the order dated 10.10.2023 by which the Special Court rejected their application under Section 311 of Cr.P.C., which was filed for recalling the victim/PW-1 for re-examination as witness. While rejecting the plea for recall of the victim, the Special Court relied upon Section 33(5) of the Act where the statute itself mandates that a child will not be called in the Court to testify.
4. The High Court again held the same provision against the petitioners while dismissing the Application under Section 482 of the Cr.P.C. filed by them. It is important to state here that POCSO Act is a special legislation, which was enacted to protect children from sexual offences and for safeguarding interests and ensuring the well-being of the child at every stage of trial of offences under the Act. Section 33 of the POCSO Act provides for the procedure and powers of the Special Court and reads as under:
“33. Procedure and powers of Special Court.— (1) A Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence, or upon a police report of such facts.
(2) The Special Public Prosecutor, or as the case may be, the counsel appearing for the accused shall, while recording the examination-in-chief, cross-examination or re-examination of the child, communicate the questions to be put to the child to the Special Court which shall in turn put those questions to the child.
(3) The Special Court may, if it considers necessary, permit frequent breaks for the child during the trial.
(4) The Special Court shall create a child-friendly atmosphere by allowing a family member, a guardian, a friend or a relative, in whom the child has trust or confidence, to be present in the court.
(5) The Special Court shall ensure that the child is not called repeatedly to testify in the court.
(6) The Special Court shall not permit aggressive questioning or character assassination of the ch
