The court affirmed the necessity of balancing the rights of the accused in a fair trial with protections for vulnerable witnesses consistent with the POCSO guidelines.

ORDER

The petitioner is the sole accused in Spl.S.C.No.56 of 2021 on the file of the Fast Track Mahila Court, Ramanathapuram, for the offence under Sections 363, 365 and 366(A) IPC and Sections 3, 4, 5(l) and 6 of Protection of child from sexual offences Act, 2012. He has filed a petition under Section 348 BNSS before the trial Court in Cr.M.P.No.374 of 2025 to recall the witnesses, namely, P.W.2, P.W.3, P.W.4, P.W.5, P.W.9 and P.W.10. The trial Court, by its order dated 09.05.2025, dismissed the said petition.

Aggrieved over the same, the petitioner has filed this petition.

2. The learned counsel appearing for the petitioner submits that the earlier cross examination was made by a Legal Aid Counsel, who has not conducted the trial effectively. Therefore, the petitioner has engaged a new counsel and he is now prosecuting the case. Since the earlier cross examination was not conducted in a proper manner, the petitioner seeks to re-examine those witnesses.

3. The learned Government Advocate (Crl. Side) submits that the witnesses, namely, P.W.1 to P.W.3 were already re-called and cross examined. Therefore, there is no necessity to re-call P.W.1 to P.W.3 again and again for the purpose of cross examination. He further submits that the petitioner has evaded the trial twice and therefore, a Non-Bailable Warrant was issued and thereafter, he was secured. According to the learned Government Advocate (Crl. Side), this petition is filed in order to drag on the proceedings further. He also submits that all these witnesses have already been cross examined and there is no necessity for further cross examination.

4. This Court considered the rival submissions made.

5. This petition raises an issue regarding the re-call of victim 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.”

6. 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.)”

7. 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 child is not called repeatedly to testify in the court."

8. In Madhab Chandra Pradhan vs. State Of Odisha (Special Leave Petition (CRL.) No. 10082 of 2024), the Hon'ble Supreme C