ORDER:

This Criminal Petition under Section 482 of the Code of Criminal Procedure (for short ‘the Code’) has been filed by the Petitioners/A.1 and A.2 seeking quashment of the Order dated 27.02.2024 passed in Crl.M.P.No.108 of 2024 in SC No.86 of 2020 on the file of the Court of Special Judge for Trial of Offences Under POCSO Act, Visakhapatnam, registered for the offences punishable under Sections 354-A and C, and Sections 7 and 11 of Protection of Children from Sexual Offences Act, 2012 (for short ‘the POCSO Act”), against them.

2. The grievance of the Petitioners/A.1 and A.2 is that in SC No.86 of 2020, they have filed an application vide Crl.M.P.No.108 of 2024 under Section 313 Cr.P.C. seeking to recall P.W.3/Chittem Anusree (victim child) for further cross-examination on the ground that some material aspects in her evidence could not be recorded in the earlier cross-examination. The Court below dismissed the said application observing as under:

This Court having considered the petition and counter averments and going through the record, observes that, PW3 was examined way back on 23.1.2024 and all most a month after the victim girl being examined, this application to recall is filed which also as put-forth by the prosecution, is silent as to the aspects on which the further cross examination is sought, where the victim child was extensively cross examined on the date of her giving evidence. That apart, the victim being a minor child, a Specific Provision is made under Section 33(5) of the Act, which categorically states that that "a child shall not be called repeatedly to testify in the Court". Which means it is the intent of the legislature to avoid stress and strain that will be caused to a child by calling him/her to testify in the Court about the trauma faced repeatedly, hence such a practice shall be discouraged, as such this Court opines that there are no grounds in the application worth considering to recall the victim child, and it would only put the girl to more trauma as calling her again to the Court to give evidence would only amplify her sufferance. Hence, this Court not only for the reason that the petition does not disclose any valid reason i.e., points on which the victim is sought to be recalled and cross examined, but also keeping in view the above referred specific provision, opines that viewed from any corner this petition deserves no consideration. Accordingly the petition is dismissed.

Aggrieved by the same, the present Criminal Petition has been filed.

3. Heard Sri R.Siva Sai Swarup, learned counsel for the Petitioners and learned Assistant Public Prosecutor for the respondent/State. Perused the material on record.

4. Learned counsel for the Petitioners would submit that the Petitioners filed a recall petition seeking to recall P.W.3/Victim Girl for further cross-examination since some material aspects in her evidence could not be touched during her cross-examination and the said Petition was dismissed by the Court below on the ground that as per Section 33(5) of the POCSO Act, a Child cannot be called repeatedly to testify in the Court. Learned counsel further submits that charges for the Offences under Sections 354-A & C and Sections 11 of POCSO Act were framed against the Petitioners and that further cross- examination is very much essential to prove the innocence of the Petitioners. Learned counsel placed reliance on the decision in Pidika Sambaru v. State of Odisha and anr1.

5. Per contra, learned Assistant Public Prosecutor would submit that the Petition is silent as to the aspects on which recalling a witness is warranted. Further, the Petition is filed in a routine manner to recall a witness for further cross-examination, which cannot be encouraged for the offence under POCSO Act particularly, the witness being a minor Child.

8. A bare perusal of Section 482 makes it clear that the Code envisages that inherent powers of the High Court are not limited or affected so as to make orders as may be nece