The central legal point established in the judgment is the interpretation of Section 311 of Cr.P.C and the dilution of rigor under Section 33(5) of the POCSO Act once the victim crosses the age of 18 years.

ORDER :

The petitioner is before this Court calling in question an order dated 27.06.2019 passed by the LIII Additional City Civil and Sessions Judge, Bangalore in Spl.C.C.No.139/2015, rejecting an application filed by the petitioner seeking recall of the prosecution witnesses - PWs.3, 4, 6 and 7.

2. Heard Sri.Guru Prasanna S., learned counsel appearing for the petitioner and Sri. K.S. Abhijith, learned HCGP for the respondent.

3. The petitioner is accused No.2 in a proceeding instituted for offences punishable under Sections 363, 366A, 376, 342 and 506 of IPC and Section 5(C) read with Section 6 of Protection of the Children from Sexual Offences Act, 2012 (for short 'POCSO Act'). On 06.05.2015, charges were framed against the accused and on 27.08.2018, the present accused No.2 files an application seeking recall of PWs.3, 4, 6 and 7 for further cross-examination, notwithstanding the fact that they were already cross-examined on 09.12.2015. The said application is taken up by the Special Court in the year 2019 only to decline the request of the petitioner for recalling on the ground that earlier opportunity that was granted had not been utilized by the petitioner to cross-examine witnesses. It is this order that drives the petitioner to this Court in the subject petition.

4. Learned counsel for the petitioner submits that further cross-examination of these witnesses is imperative, in the light of the fact that the petitioner is facing offences which could result in punishment of imprisonment which could be 7 years and more and the reason rendered by the Court for rejecting the application runs counter to the order sheet, as the petitioner was present at the time when the opportunity of cross-examination was sought to be given to the petitioner.

5. Learned HCGP would however refute the submissions to contend that it would delay the proceedings, if such applications are repeatedly filed and be granted and further contends that the victim should not be recalled time and again, as there is a specific bar under Section 33(5) of the POCSO Act and would seek dismissal of the petition.

6. I have given my anxious consideration to the contentions of respective learned counsel and have perused the material on record.

7. It is not in dispute that the petitioner is accused No.2 and is facing trial for the offences punishable as afore-quoted. An application is filed by the petitioner on the ground that there has been short cross-examination of the aforesaid witnesses and if they would require further cross-examination.

8. The learned Special Judge by his order dated 27.06.2019 rejects the application on the following ground:

"8. Points No.1 & 2: The Accused No.1 sought for recall of PWs 2 and 4 for further cross-examination, who are examined before this Court on 7.11.2015 and 9.12.2015 respectively. PW-2 Siddaraju who is examined on 9.12.2015 and PW-4 Sowbhagya, On the same day, both of them were cross-examined in detail on behalf of Accused No.1. The cross-examination on behalf of Accused No.2 was taken as nil as the Counsel was not represented, inspite of giving opportunity to cross-examine both of them. However, Accused No.2 sought for recall of PWs 3, 4, 6 and 7, but after giving opportunity to the Counsel, their cross-examination also taken as nil. At present, I do not find any sufficient grounds to allow the applications and to recall PWs 2 to 4, 6 and 7 respectively as prayed by Accused No.1 and 2. Hence, in the absence of bonafide reasons, I am of the opinion that, the applications are deserves to be rejected and I answer points No.1 and 2 in the Negative.

9. Point No.3:- In the result, I proceed to pass the following:

ORDER

The applications filed u/S 311 of Cr.P.C on behalf of the Accused No.1 and 2 are hereby dismissed."

9. The cross-examination of PWs.3, 4, 6 and 7 were taken as nil, is what is indicated in the order. The order sheet maintained for the particular date reads as follows:

"09.12.2015:

Accused No. 1 & 2 present.

Advocates for the a