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2024 Supreme(Online)(MAD) 27235
HIGH COURT OF MADRAS
Hon`ble Mr.Justice K.MURALI SHANKAR
Sritharan – Appellant
Versus
The State of Tamil Nadu – Respondent
Crl.O.P.(MD)No.15530 of 2024 and Crl.M.P.(MD)No.9720 of 2024
Mr.M.Karunanithi, Mr.K.Sanjai Gandhi Government Advocate (Crl. Side)
The court established that a balance must be struck between the accused's right to a fair trial and the protection of child witnesses from repeated trauma.
Headnote:
POCSO - Criminal Procedure - Cr.P.C. Section 311 - The court allowed the petition to recall a child witness for cross-examination, emphasizing the need for fair trial rights while protecting the victim from repeated trauma.
Fact of the Case:
The petitioner sought to recall a child witness for cross-examination after the trial court dismissed his earlier petition. The child had already testified, and the petitioner claimed he was not adequately represented during the initial cross-examination.
Finding of the Court:
The court found that the petitioner had not cross-examined the witness and noted the importance of allowing one last opportunity for cross-examination while ensuring the child’s protection from further trauma.
Issues: Whether the petitioner should be allowed to recall the child witness for cross-examination after the trial court's dismissal of his earlier petition.
Ratio Decidendi: The court held that in cases involving serious allegations, a fair opportunity for the accused to cross-examine the witness is essential, especially when the witness is a child, while also ensuring the child's well-being.
Final Decision: The petition to recall the child witness was allowed with conditions.
ORDER
The Criminal Original Petition has been filed for setting aside the order passed in Crl.M.P.No.273 of 2024 in Spl.S.C.No.33 of 2024 dated 01.07.2024 on the file of the Principal Special Court for Exclusive Trial of Cases under POCSO Act, Thanjavur, dismissing the petition filed under Section 311 Cr.P.C.
2. The petitioner is facing the case in Spl.S.C.No.33 of 2024 for the offences under Sections 5(g), 5(l), 13(a), 14(1), 14(2), 6(l) and 17 of POCSO Act r/w Section 67(B)(e) of Information Technology Act. The petitioner has filed a petition under Section 311 Cr.P.C. to recall P.W.1 for the purpose of cross-examination and the learned Sessions Judge has dismissed the petition. Aggrieved by the order of dismissal, the present petition came to be filed.
3. Admittedly, P.W.1-victim girl was chief examined on 17.05.2024.
4. The learned counsel appearing for the petitioner would submit that co-accused has filed a petition before the trial Court to recall P.W.1 and since the same was dismissed, he has preferred a petition before this Court in Crl.O.P.(MD)No.13824 of 2024 and this Court vide order dated 22.08.2024 has allowed the petition and it is necessary to refer the observation and finding of the learned Judge of this Court hereunder:-
“6. It is seen that the victim child was examined on 17/5/2024. When the witness is a child witness, she cannot be made to attend the Court and undergo the trauma again and again on various dates and therefore, adequate care must have been taken by the petitioner to cross examine the victim on the same date. But, however, the only factor seems to be that the Legal Aid counsel was appointed on 14/6/2024 and in view thereof, considering the fact that in a case involving serious allegations, one opportunity can be granted to the accused to cross examine the victim. It is made clear that all the necessary formalities to examine the child witness to be followed on the next hearing date or any such date as may be specially fixed by the trial court, the victim shall be produced before the court. The Trial court shall fix a date for production of PW.1 for cross examination. On that date, without fail the petitioner herein / accused No.2 shall cross examine the PW1. It is made clear that the cross examination should not amount to further victimize the child. Even though on 17.05.2024, on behalf of the other accused cross examination was done, the petitioner's counsel said to have been absent. Therefore on the subsequent hearing, the Court has nominated a Legal Aid counsel on 14/6/2024. Since the petitioner's Counsel was not present, and when the Legal Aid Counsel was nominated and subsequently, when the offence is serious, one opportunity has to be granted to the petitioner. This court also considers the fact that the victim cannot be repeatedly subjected to harassment. She has already deposed and was also cross examined, however, only in the extraordinary circumstances, one last opportunity is granted to the petitioner / accused. After the receipt of a copy of this order, the Trial Court shall fix any one day for the victim to be produced and on that day, cross examination should be done by the petitioner / 2nd accused and the same shall be permitted only with reference to the specific allegations as against the petitioner / 2nd accused and the child cannot be permitted to undergo the entire ordeal once again.”
5. The learned counsel appearing for the petitioner would submit that the petitioner is ready to cross-examine the P.W.1 within a week time stipulated by this Court.
6. Considering the above facts and circumstances and taking note of the facts that P.W.1 was not at all cross-examined and the order passed by this Court in respect of the co-accused, this Court is inclined to give one more opportunity to the petitioner to cross examine the witness in order to establish his defence. But at the same time, this Court is of the further view that the petitioner must be mulcted with costs.
7. In the result, the
