IMPORTANT POINTS
(1) Exercise of repeatedly bringing a minor to Court to depose about incident of sexual predation by itself amounts to secondary victimisation.
(2) Whenever a minor victim is brought to Court, it should be endeavour of Judge to see she/he is examined in full on that day itself.

JUDGMENT

Heard the learned Advocates appearing for the parties.

2. It is submitted on behalf of the petitioner minor victim has not supported the prosecution case. She came out with a different version of the incident in course of cross-examination. Accordingly, petitioner prays for bail.

3. Learned Additional Public Prosecutor opposes the prayer for bail. He submits the minor had explicitly narrated the incident during her examination-in-chief. Prayer was made for adjournment to cross-examine her. Prayer was mechanically allowed. After a fortnight, on the adjourned day she came out with a different version. Under such circumstances, Public Prosecutor made an application for recall of the witness to put questions to her to test her veracity which, however, was disallowed. Relations of the victim are yet to be examined. Hence, prayer for bail may be rejected.

4. In reply, Mr. Basu submits that the minor did not appear in Court earlier on a number of occasions and had been brought to the Court pursuant to a bailable warrant.

5. We have considered the materials on record. Victim is a 13 year old girl. During her examination-in-chief, she stated that the petitioner used to show her obscene pictures and put his hand in her private parts. During cross-examination, she referred to a dispute between the petitioner and her mother over payment of dues. She, however, denied the suggestion that the petitioner had sexually violated her.

6. Evidence of a witness is to be taken as a whole. Her evidence during examination-in-chief clearly supports the prosecution case. Other witnesses particularly the mother and relations of the minor are yet to be examined. Release of the petitioner on bail at this stage may adversely affect the case and have impact on other witnesses. Hence, we are not inclined to grant bail to the petitioner.

7. Accordingly, the prayer for bail of the petitioner is rejected.

8. This Court is constrained to observe the manner of examination of the minor victim is not in accordance with the procedure laid down in Section 33 of POCSO Act. The aforesaid provision, inter alia, provides for a child friendly atmosphere for examination of a minor. Such examination is to be conducted in presence of her guardian, a friend or relation. The Court is also required to see that the minor is not intimidated through aggressive or embarrassing questions which may affect the dignity of the child. Sub-section (5) of Section 33 of the POCSO Act puts a duty upon the Court to ensure that the child is not called repeatedly to testify in Court.

9. The aforesaid requirement was wholly lost sight of by the trial Court who on the mere bidding of the defence, adjourned the cross-examination of the minor to another date. On the adjourned day, the minor appears to have come out with a different version of the incident. This gives rise to an inference during the interregnum the victim had been won over. The Apex Court in a catena of decisions Vinod Kumar vs. State of Punjab, (2015) 3 SCC 220 (see para 57); Rajesh Yadav And Another vs. State of U.P., 2022 SCC OnLine SC 150 (see para 23) discouraged the practice of long adjournments in course of examination of a witness which leads to witness turning hostile or being won over. The present case is a glowing example of such endemic malady. A fortnight’s adjournment resulted in a clear change of stance by the minor. Instead of insisting on completion of the examination of the minor on the same day the Special Court mechanically gave an adjournment for a fortnight on the mere asking of the defence.

10. We do not appreciate such course of action. We are of the view Special Courts while conducting examination of a minor must bear in mind the safeguards engrafted in Section 33 of the POCSO Act particularly Sub-section (5) thereof which interdicts calling of the minor witness repeatedly to Court. Whenever a minor victim is brought to the Court, it should be the endeavour of the Judge to see she/he is exa