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2022 Supreme(Mad) 2144
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
V. SIVAGNANAM, J.
Sankar - Appellant
Versus
State Represented through The Inspector of Police, Tirunelveli - Respondent
CRL.O.P (MD) No. 11427 of 2022 & Crl.M.P(MD) No. 7226 of 2022
Decided On : 28-06-2022
For the Petitioner:R. Karunanidhi, Advocate. For the Respondent:R. Suresh Kumar, Government Advocate (Crl.Side).
The central legal point established in the judgment is the right of the accused to recall witnesses for cross-examination and the application of Section 33(5) of the POCSO Act.
Headnote:
Recall - POCSO Case - Section 366(A) of IPC, Section 5(1) r/w 6 of POCSO Act - The court discussed the application of Section 33(5) of the POCSO Act, the age of the victim, and the right of the accused to place his defense. The court set aside the trial court's order and allowed the recall of P.W.2 for further cross-examination.
Fact of the Case:
The petitioner, an accused in a POCSO case, filed a petition to recall witnesses for further cross-examination. The trial court had dismissed the petition with regard to the victim but allowed it for another witness.
Finding of the Court:
The court found that the victim had crossed 18 years of age and the application of Section 33(5) of the POCSO Act should be diluted. It held that the accused should be given a fair chance to place his defense and recalled the victim for further cross-examination.
Issues: The key issue was the application of Section 33(5) of the POCSO Act and the right of the accused to recall witnesses for cross-examination.
Ratio Decidendi: The court's decision was based on the interpretation of Section 33(5) of the POCSO Act and the age of the victim, emphasizing the accused's right to place his defense.
Final Decision: The Criminal Original Petition was allowed, and the trial court was directed to recall the victim for further cross-examination.
JUDGMENT
(PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C, praying to call for the records pertaining to the impugned order passed in Cr.M.P.No.1721 of 2021 in Spl.C.C.No.09 of 2020 on the file of the learned Special Court for POCSO Cases, Tirunelveli and set-aside the same and allow the set- aside petition.)
1. This Criminal Original Petition has been filed challenging the impugned order passed in Cr.M.P.No.1721 of 2021 in Spl.C.C.No.9 of 2020 on the file of the learned Special Court for POCSO Cases, Tirunelveli and set aside the same and allow the set aside petition.
2. The learned counsel for the petitioner submitted that the petitioner is the accused in Spl.C.C.No.9 of 2020 on the file of the learned Special Court for POCSO Cases, Tirunelveli. He was charged for the offences under Sections 366 (A) of IPC and Section 5(1), r/w 6 of POCSO Act. In this case, so far 12 witnesses have been examined. P.W.2 is the victim girl and P.W.3 is the mother of the victim girl. Even though P.W.2 and P.W.3 were examined in chief and cross-examined on 07.10.2021, in the cross examination, some important defence with regard to the contradictions that have been mentioned in the chief examination of P.W.2 and P.W.3 could not be raised. Hence, the petitioner filed an application to recall P.W.2 and P.W.3 under Section 311 Cr.P.C in Cr.M.P.No.1721 of 2021. By the impugned order, dated 13.04.2022, the learned Judge, permitted to recall P.W.3, mother of the victim girl for further cross-examination on payment of cost and with regard to the victim P.W.2, dismissed the said petition. This petition is partly allowed, on payment of cost of Rs.3,000/- on or before 29.04.2021 and permitted to recall for further cross-examination on payment of batta and process to P.W.3 and with regard to P.W.2, the said petition is dismissed. Aggrieved by this order, this petition has been filed.
3. The learned Government Advocate (Criminal Side) appearing for the respondent submitted that so far, the trial Court examined P.W.1 to P.W.12 and posted the matter on 01.07.2022 for further proceedings. Already P.W.3 was permitted to recall, for further cross-examination and P.W.2 being a victim girl, in order to avoid harassment to victim girl, the petition was dismissed by the trial Court and there is no reason to interfere with the order passed by the trial Court.
4. I have considered the rival submissions and on perusal of the records, it is seen that the petitioner is an accused in Spl.C.C.No.9 of 2020 on the file of the Special Court for POCSO Cases, Tirunelveli. The respondent police prosecuted the petitioner for having sexually harassed the victim girl and the accused committed the offence punishable under Sections 366(A) I.P.C, and Section 5(1) r/w 6 of POCSO Act. At the time of occurrence, the victim girl was studying in the College, B.A. II year and the occurrence took place in the year 2018 and at that time, the victim girl was aged about 17 years.
5. On perusal of the impugned order passed by the learned trial Judge, in view of the Section 33 (5) of POCSO Act, to avoid repeatedly harassing the victim, the trial Court dismissed the petition with regard to P.W.2 and with regard to P.W.3, the petition was allowed with cost of Rs.3,000/- to be paid on or before 29.04.2021.
6. The learned counsel for the petitioner in support of the argument relied upon the judgment of the Karnataka High Court in Crl.O.P.No.4449 of 2022, dated 06.06.2022 and submitted that once the victim crosses 18 years of age, the rigor of Section 33 (5) of the Act get diluted and in order to give a fair chance to the petitioner/accused, the victim may be recalled.
7. I have considered the submission made by the learned counsel for the petitioner in this aspect. Admittedly, the victim was aged about 17 years at the time of occurrence in the year 2018. Now, she becomes major and also this incident happened due to the love affair between the petitioner/ accused and the victim girl. The f
