The court affirmed the balance between victim protection under POCSO and the accused's right to a fair trial, allowing for cross-examination under specified conditions.

ORDER

This Criminal Original Petition is filed as against the order passed by the learned Sessions Judge, Special Court for POCSO Act Cases, Tirunelveli in CrMP No.3525 of 2023 in SplCC No.314 dated 12.01.2024 rejecting the application filed by petitioner to re-call the victim for cross examination.

2.The petitioner is facing trial for the offences under Section 366 (A) of IPC and Section 6 of POCSO Act, 2012 . The allegations against the petitioner are that he being a distant relative of the victim (aged 16 years at the time of occurrence) frequently interacted with the victim and lured her with promise of marrying her. On the date of the incident, through phone he forced her to leave work and took her to various places and sexually assaulted the victim. Charges were framed against the petitioner and PW 1 (mother of the victim) and PW 2 (the victim) were examined in chief on 17.11.2021. Though the petitioner and his counsel were present on the day, they did not cross examine the victim. Thereafter, the petitioner has made an application under Section 311 CrPC to recall the victim for cross-examination and the same has been rejected vide the impugned order.

3.The learned counsel for the petitioner submits that denying of opportunity to cross-examine the victim would affect the right of the accused to a fair trial. He further submits that petitioner's counsel was engaged in some other courts on the day of chief examination and also due to personal inconvenience of the counsel, PW2 / victim was not cross examined. He further submits that the petitioner undertakes to pay the cost of Rs.25,000/- the victim as fixed by this Court.

4.On the other hand, the learned Government Advocate has pointed out the serious nature of the offence and the fact that the petitioner’s counsel did not cross-examine the victim on the day of chief examination itself.

5.The Court has considered the rival submissions made and perused the materials placed on record.

6.This petition raises an issue regarding the re-call of victims under the POCSO Act for cross examination and scope of the same. The victims in POCSO cases are the most vulnerable and sensitive and therefore, courts are duty bound to adopt victim centric approach when such victims come in contact with the trial process. To understand this point, it would be pertinent to refer to the “Guidelines for Recording of Evidence of Vulnerable Witnesses” (R.O.C.No.15447/2023/F1) made by this Court. These guidelines have been adopted in line with the decision of the Supreme Court in Smruti Tukaram Badade vs. State of Maharashtra (Crl.A.No.1101 of 2019) and are applicable to all courts in Tamil Nadu and Puducherry. Rule 6 of these guidelines lists out certain stress factors in respect of which courts must take measures to minimize or mitigate the same. The following are certain relevant factors:

“a. Multiple depositions.

c. Delays and repeated adjournments.

…..

d. Testifying more than once.”

7.Rule 18 of the above guidelines provides certain directions to be followed by the courts when dealing with vulnerable witnesses.

The following are relevant for this case:

“(i) Vulnerable witnesses shall receive high priority and shall be dealt with as expeditiously as possible, minimizing unnecessary delays and adjournments to avoid repeated appearances of the witness in the Court. (Whenever necessary and possible, the court schedule will be altered to ensure that the testimony of the vulnerable witness is recorded on sequential days, without delays.)”

8. Section 33 (5) of the POCSO Act deals with the restriction on calling such victims to testify in the court. The same is reproduced below for reference:

"33(5) The Special Court shall ensure that the