The age of the victim, being 19 years, allows for her further cross-examination despite Section 33(5) of the POCSO Act, emphasizing the court's duty to ensure justice through essential evidence.

ORDER

The petitioner is before this Court calling in question an order dated 02.03.2024 passed by the concerned Court rejecting an application filed under Section 311 of the Cr.P.C. to recall witnesses - PWs.1 and 2 for further cross-examination.

2. Heard Sri. M.N. Ramakrishna, learned counsel appearing for the petitioner and Sri. Thejesh P., learned HCGP appearing for respondent No.1.

3. Facts in brief, germane, are as follows:

The petitioner gets embroiled in a crime in Crime No. 70/2021 for offences punishable under Sections 363, 376 of the IPC, Section 6 of the Protection of Children from Sexual Offences Act , 2012 ('the POCSO Act' for short) and Section 9 of the Child Marriage Restraint Act , 1929. The police conduct investigation and file a charge sheet and the matter is pending before the concerned Court as S.C.No.139/2021. The issue in the lis does not concern the merit of the matter. The petitioner files an application before the concerned Court on 22.12.2023 invoking Section 311 of the Cr.P.C. to recall PWs.1 and 2 for further cross-examination. This comes to be rejected by the impugned order that the recalling of the victim girl cannot be done time and again, as there is a Bar under Section 33(5) of the POCSO Act.

4. Learned counsel appearing for the petitioner submits that PWs.1 and 2 no doubt were cross-examined, but their further cross-examination is imperative. Therefore, the order that rejects the further cross-examination or the application filed under Section 311 of the Cr.P.C. is contrary to law. He would further add that the age of the victim as on today is 19 years.

5. Learned HCGP would though refute the submissions to contend that repeatedly calling the victim would run counter to Section 33(5) of the PCOSO Act and would admit the fact that the victim today is 19 years old.

6. I have given my anxious consideration to the respective submissions made by the learned counsel and have perused the material on record.

7. The afore-narrated facts are not in dispute. The issue lies in a narrow compass. The cross-examination of PWs.1 and 2 happens at the outset on 11.08.2022 and 28.12.2022. It is the case of the petitioner that during the cross-examination, the victim had deposed that she did not know what was written by the police while recording the statement. It is after this the petitioner files an application under Section 311 of the Cr.P.C. to recall both the father and the victim for further cross-examination. The application is rejected on the score that the victim cannot be repeatedly called for cross-examination owing to the Bar under Section 33(5) of the POCSO Act. Section 33(5) of the POCSO Act, reads as follows:

"33(5). The Special Court shall ensure that the child is not called repeatedly to testify in the court."

8. No doubt Section 33(5) of the POCSO Act would indicate that the victim should not be recalled time and again for cross-examination. The rigour would get a little diluted, as the victim today is not below 18 years, she is 19 years old. Therefore, the concerned Court ought to have considered that factor and permitted further cross-examination of the victim and the father of the victim.

9. The purport and the importance of Section 311 of the Cr.P.C. need not detain this Court for long or delve deep into the matter. The Apex Court in the case of VARSHA GARG V. STATE OF MADHYA PRADESH , 2022 SCC OnLine SC 986 has held as follows:

"31. Having clarified that the bar under Section 301 is inapplicable and that the appellant is well placed to pursue this appeal, we now examine Section 311 of CrPC. Section 311 provides that the Court “may”:

(i) Summon any person as a witness or to examine any person in attendance, though not summoned as a wi