The main legal point established in the judgment is that the provisions of the POCSO Act, particularly Sec.33(5) and Sec.33(2), restrict the recalling of the victim repeatedly and require communication of questions to be put to the victim through the Special Court. The Court also emphasized that the recalling of the witness should be essential for a just decision of the case.

JUDGMENT :

K. S. MUDAGAL, J.

1. Petitioner has filed this petition aggrieved by the Order dated: 25-07-2019 passed by the II Addl. Sessions Judge and Special Court for trial for the offences punishable under the POCSO Act, 2012 Gulbarga in Spl. Case (POCSO) No.41/2019 dismissing the petitioner's application under section 311 Cr.P.C.

2. Petitioner is facing trial in Special Case (POCSO) No.41/2019 for the offences punishable under sections 366-A, 376(2) (N) & 506 of IPC and under sections 4, 6 & 8 of POCSO Act, 2012.

3. The allegations against the petitioner are that, he kidnapped PW.1 a minor girl from the custody of her parents, confined her in a place in Bengaluru and committed rape on her. Victim girl was examined before the trial Court on 20-11-2018 as PW.1.

4. Petitioner in his application under section 311 Code of Criminal Procedure contended that, at the time of cross-examination of PW.1 some material questions were left out by oversight and confrontation of some document was left out, therefore it is very much necessary to further cross-examine her.

5. Pending the application, other prosecution witnesses were examined, petitioner was examined under section 313 Code of Criminal Procedure and in his defense he examined his mother as DW.1.

6. Thereafter on hearing, the trial Court, by the impugned order rejected the application of the petitioner under section 311 Cr.P.C on the ground that, the accused has not stated what are the important questions left out to elicit to PW.1 and how they are essential for just decision of the case. The trial Court holds that Sec.33(5) of POCSO Act puts a rider on recalling the victim repeatedly.

7. Learned counsel for the petitioner submits that, after the examination of PW.1, Ex.D.2 a letter allegedly written by the victim to her parents was marked through DW.1 and that was required to be confronted to PW.1 to prove the same.

8. Relying on the Judgment of the Hon'ble Supreme Court of India in Ratanlal V/s Prahlad Jat & Ors. Criminal Appeal No.499 of 2014 dated: 15-09-2017 and unreported order of this Court in Parashuram & others V/s State through Nelogi P.S. in Criminal Petition No.200374/2019 dated: 26-03-2019, learned counsel for the petitioner submits that, the trial Court failed to consider the application in accordance with section 311 of Code of Criminal Procedure.

9. Learned High Court Government Pleader seeks to justify the impugned order of the trial Court on the ground that, the application did not specify the question left out and was violative of section 33(5) of the POCSO Act 2012.

10. Section 311 Code of Criminal Procedure empowers the Court to recall the witnesses only, if it is satisfied that such recalling is essential for the just decision of the case. Section 311 of Code of Criminal Procedure is a general provision. The POCSO Act is special enactment. Section 31 of POCSO Act specifies the scope of the application of the Criminal Procedure Code to the proceedings before the Special Court.

11. Section 31 of POCSO Act says that save as otherwise provided in the said Act, the Provision of Code of Criminal Procedure shall apply to the proceedings under the Act. But Section 33 of the said Act provides for the examination of the witnesses and victim.

12. Section 33 (2) POCSO Act reads as follows:

Sec.33(1) ..

(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.

Reading of the above provisions makes it clear that, neither the special public prosecutor, nor the defence counsel has the right to examine or cross-examine the child directly. They have to communicate questions to be put to the child to the Special Court, which in turn shall put those questions to the child.

13. In the application under consideration filed by the accused