O R D E R

This Criminal Original Petition has been filed to call for the records and set aside the order, dated 01.07.2024 passed in Crl.M.P.No. 272 of 2024 in Spl.S.C.No. 33 of 2024 on the file of the Princial al Special Court for Exclusive Trial of Cases under POCSO Act, Thanjavu

2. This is a case involving the allegation of the petitioner along with the other accused indulged in penetrative sexual assault of the victim and videographed the incident. As such, the investigation is completed and the case is now progressing in trial in Spl.S.C.No.33 of 2024 on the file of the Principal Special Court for Exclusive Trial of Cases under POCSO Act, Thanjavur. The petitioner / A2 is in prison. The accused did not cross examine the victim child when she was examined as PW.1 on 17/5/2024. Therefore, the case was proceeded and now, it is posted for examination of LWs.8, 11 to 16. At this stage, the present petition is filed under Section 311 of Code of Criminal Procedure to recall PW1 for cross examination.

3. The learned counsel for the petitioner submits that PW1 victim child was examined on 17/5/2024 and only thereafter, in respect of 2nd accused, the Legal Aid Counsel was appointed on 14/6/2024. In view thereof, thereafter, immediately within three days the present petition is filed and therefore, the petitioner ought to have been given an opportunity. The trial court considered the application and finding that on the date of examination, the petitioner did not cross examine and not even in the next hearing date steps were taken, dismissed the petition and hence, the the petitioner is before this court. He would further submit that in view of the fact that the counsel was subsequently appointed, the opportunity should be given to the petitioner.

4. The said Prayer is opposed by the learned Government Advocate (Crl. Side) on the ground that the recall petition cannot be allowed in a routine manner without any justification.

5. I have considered the rival submissions made on either side and perused the materials available on record.

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 accuse