The closure of a child victim's cross-examination in a sexual assault case was ruled unjustified, emphasizing the necessity of safeguarding procedural rights and ensuring a fair trial under the POCSO Act.

JUDGMENT :

SWARANA KANTA SHARMA, J

1. By way of the present petition, the petitioner seeks setting aside of the order dated 13.12.2024 [hereafter "impugned order"], passed by the learned Additional Sessions Judge (FTSC) (POCSO)- 03, South West, Dwarka Courts, Delhi, [hereafter "Trial Court"] in SC No. 682/2022, titled as "State of NCT of Delhi v. Vinay Malhotra ", by way of which the learned Trial Court was pleased to close the evidence of the petitioner-victim.

2. Briefly stated, the petitioner-victim had filed a complaint on the basis of which FIR No. 290/2022, dated 28.06.2022 at Police Station Dwarka, Delhi, for offence punishable under Sections 328/376/384/506 of Indian Penal Code, 1860 [hereafter "IPC"], with later addition of Sections 379/384/506 of IPC and Section 8 of the Protection of Children from Sexual Offences Act, 2012 [hereafter "POCSO Act"]. The learned Trial Court had passed an order on charge on 01.12.2023, directing framing of charge. The victim's examination-in-chief was recorded on 03.02.2024 and she was partly cross-examined on 24.02.2024. On 20.03.2024, charges under Sections 5(1) and 5(p) read with Section 6 of the POCSO Act were added under Section 216 of Cr.P.C. against the accused, based on specific allegations of penetrative sexual assault made by the victim during her examination-in-chief. Despite multiple adjournments, no reply had been filed to the application under Sections 437(5)/439(2) of Cr.P.C. Cross-examination of the victim resumed on 04.10.2024, but the same was adjourned again due to the victim's absence and counsel's non-compliance with his undertaking. On 13.12.2024, during the recording of cross-examination, the counsel for the accused had put a question to the victim regarding whether her maid, Siya Pardesia, used to stay at her house. This question had been objected to by the counsel for the victim on the ground that it was repetitive. The victim replied that she had already answered the question and that it was being repeated. At this stage, the learned Trial Court had closed the cross-examination of the victim with the observation that “the victim has repeated verbatim response from her counsel.”

3. The learned counsel for the petitioner submits that the closure of the victim's evidence by the learned Trial Court vide order dated 13.12.2024 is wholly unjustified, without any factual or legal basis, and it causes serious prejudice to the petitioner who is the child victim in this case. It was argued that the prolonged pendency of the petitioner's application under Sections 437(5)/439(2) of Cr.P.C., and repeated unwarranted adjournments have led to inordinate delay in the trial, in violation of the timelines prescribed under the POCSO Act. The learned counsel pointed out that the child victim was compelled to attend court on multiple dates despite the mandate under Section 33 of the POCSO Act that a child should not be called repeatedly, and that the trial proceedings lacked the required child- friendly atmosphere due to adverse remarks and aggressive questioning, contrary to Sections 33(4) and (6) of the POCSO Act. It was further contended that counsel for the accused conducted cross- examination without a valid vakalatnama, rendering the proceedings procedurally flawed. In the absence of any efficacious alternative remedy, the petitioner has approached this Court seeking setting aside of the impugned order and to ensure fair trial in accordance with law.

4. The learned APP for the State argues that the closure of the victim's cross-examination on 13.12.2024 was not justified in the facts and circumstances of the case, especially when the victim had only objected to a repeated and irrelevant question and was awaiting the Court's ruling on the objection raised by her counsel. It was submitted that the learned Trial Court ought to have adjudicated upon the objection, instead of abruptly closing the evidence, particularly in a case involving a child victim under the POCSO Act, where heigh