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IN THE HIGH COURT OF KARNATAKA
M. Nagaprasanna, J.
State of Karnataka - Appellant
Versus
Somanna - Respondent
Criminal Petition No. 8167/2020
Decided On : 03-03-2022
CROSS-EXAMINATION - Protection of Children from Sexual Offences Act - Sections 9, 10, 11 of Prohibition of Child Marriage Act - Section 33 of the POSCO Act - The court discussed the provisions of the POSCO Act, emphasizing the child-friendly atmosphere in court, and the right to cross-examine the victim under the Act. The court referred to the judgments of NIPUN SAXENA v. UNION OF INDIA, DOULA v. THE STATE, and GOUTAM AND OTHERS v. THE STATE OF KARNATAKA to support the interpretation of Section 33 of the POSCO Act. The court held that the order declining cross-examination of the victim was unsustainable and permitted the State to cross-examine the victim in strict accordance with Section 33 of the POSCO Act.
Fact of the Case:
A complaint was registered for offences under various sections including the POSCO Act and Prohibition of Child Marriage Act. The victim turned hostile during the trial, and the State sought permission to cross-examine the witness, which was declined by the Sessions Judge. The State challenged this order in the subject petition.
Finding of the Court:
The court found that the order declining cross-examination of the victim was unsustainable and permitted the State to cross-examine the victim in strict accordance with Section 33 of the POSCO Act.
Issues: The main issue was whether the victim under the POSCO Act can be permitted to be cross-examined once she turns hostile.
Ratio Decidendi: The court emphasized the child-friendly atmosphere in court and the right to cross-examine the victim under the POSCO Act. It referred to relevant judgments to support its interpretation of Section 33 of the POSCO Act.
Final Decision: The Criminal Petition was allowed, and the order declining cross-examination of the victim was quashed. The matter was remitted back to the Sessions Judge to permit cross-examination of the victim strictly in accordance with Section 33 of the POSCO Act.
ORDER
1. The State is before this Court in the subject petition calling in question order dated 16-09-2019 passed by the Principal District and Sessions Judge, Chamarajnagar in Special Case No. 184 of 2019, whereby the learned Sessions Judge declined to permit the State to cross-examine the victim on her turning hostile in a case arising out of the provisions of the Protection of Children from Sexual Offences Act, 2012 ('POSCO Act' for short) and Sections 9, 10 and 11 of the Prohibition of Child Marriage Act, 2006.
2. Sans details, facts in brief, are as follows:-
A complaint is registered 29-04-2019 in Crime No. 115 of 2019 for offences punishable under Section 376(n) read with Section 34 of the IPC, Sections 4, 6, 8, 12 and 17 of the POSCO Act and Sections 9, 10 and 11 of the Prohibition of Child Marriage Act. The complaint was registered for an offence that was committed on 02-12-2018. The allegation was that accused Nos.2 to 10 having knowledge that the victim girl was minor got her marriage with accused No.1 on 02-12-2018 and accused No.1 knowing full well that the victim was a minor girl had committed sexual assault on her many a times. In the trial, recording of evidence of prosecution witnesses commenced on 16-09-2019 on which day the victim turns hostile. On her turning hostile, the State seeks permission of the learned Sessions Judge to cross-examine the witness. The learned Sessions Judge having declined such cross-examination drives the State to this Court in the subject petition.
3. Sri. Shankar H.S., learned High Court Government Pleader representing the State would vehemently submit that the order passed on 16-09-2019 runs counter to law as once the witness turns hostile cross-examination is a right. Merely because the proceedings are under the POSCO Act, the right of cross-examination cannot be taken away as the very Act itself permits such cross-examination and submits that the same be allowed and the State be permitted to cross-examine the victim.
4. The only issue that falls for my consideration is whether the victim under the POSCO Act can be permitted to be cross-examined once she turns hostile. Before considering the issue, I deem it appropriate to notice the provisions of the POSCO Act which deals with the procedure and powers of the Special Court. Section 33 of the POSCO Act reads as follows:
"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 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 child and ensure that dignity of the child is maintained at all times during the trial.
(7) The Special Court shall ensure that the identity of the child is not disclosed at any time during the course of investigation or trial:
PROVIDED that for reasons to be recorded in writing, the Special Court may permit such disclosure, if in its opinion such disclosure is in the interest of the child.
Explanation: For the purposes of this sub-section, the identity of the child shall include the identity of the child's family, school, relatives, neighbourhood or any other informati
The main legal point established in the judgment is the right to cross-examine the victim under the POSCO Act and the importance of maintaining a child-friendly atmosphere in court.
The right to cross-examine witnesses is essential for a fair trial, and courts must balance this right with the need for expeditious proceedings.
The interpretation of 'child' in the Protection of Children from Sexual Offences Act, 2012, extends to victims of sexual offences regardless of their age at the time of examination, ensuring continue....
The accused's right to cross-examine any witness cannot be taken away, especially in a trial involving serious charges.
Section 33(5) POCSO inapplicable to major victims; recall for cross-examination permitted to avoid prejudice.
(1) Examination of child victim – Once individual crosses statutory threshold of eighteen years and becomes adult, very rationale underpinning procedural shield falls away – It would be a legal incon....
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