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2026 Supreme(Online)(Mad) 27048
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R.VIJAYAKUMAR, J
Selvin – Appellant
Versus
The State of Tamilnadu – Respondent
Crl.OP.(MD)No.5504 of 2026|Spl.SC.No.82/2022|Cr.MP.No.49 of 2026
For the Appellants/Petitioners: M/s.C.Muthusaravanan
For the Respondents: Mr.R.Meenakshi Sundaram Additional Public Prosecutor
POCSO Act Section 33(5) inapplicable to re-cross-examination once victim attains majority.
Headnote:First Paragraph: Under Section 33(5) of the POCSO Act, 2012, restrictions apply to recalling child victims for testimony to prevent repeated trauma, as invoked by the trial court to reject an application under Section 311 Cr.P.C. for re-cross-examination of witnesses after initial cross-examination. Essential facts involve accused filing the application due to counsel's illness on the examination date, with witnesses P.W.1 to P.W.4 already cross-examined. The court found Section 33(5) inapplicable as the victim had attained majority, no longer qualifying as a 'child', and no undue delay occurred since the application was filed promptly. Second Paragraph: Key issue framed as whether Section 33(5) POCSO Act bars re-cross-examination post-majority. Ratio decidendi emphasizes that once victim reaches majority, POCSO protections do not apply, allowing recall under Section 311 Cr.P.C. without prejudice, especially for crucial witnesses to rebut evidence, as no grave prejudice arises from denying cross-examination (citing prior precedent on unrebutted evidence). Last Paragraph: The impugned order rejecting the Section 311 application is set aside; petition allowed, directing completion of cross-examination of P.W.1 to P.W.4 on a single day with no further chances.
| Table of Content |
|---|
| 1. petition challenges rejection of section 311 cr.p.c. application due to counsel illness. (Para 1 , 2) |
| 2. section 33(5) pocso inapplicable post-victim majority. (Para 3 , 4) |
| 3. impugned order set aside; one-time cross-examination permitted. (Para 5) |
ORDER
The present petition has been filed by the Accused Nos.1, 2 and 5 in Spl.S.C.No.82 of 2022, on the file of the learned Special Judge for POCSO Act cases, Nagercoil, seeking to set aside the order passed in Cr.M.P.No.49 of 2026 wherein the application filed by the petitioner under Section 311 of Cr.P.C. has been rejected.
2. The P.W.1 to P.W.4 were cross examined on 07.01.2026 and it was posted on 27.01.2026 for examination of further witnesses. On the said date, 311 application was filed on the ground that on 07.01.2026 due to the illness of the learned Counsel for the accused persons, P.W.1 to PW.4 could not be cross examined. However, the said petition has been dismissed under the impugned order dated 24.02.2026.
3. A perusal of the impugned order reveals that the learned Judge has invoked Section 33(5) of the POCSO Act and has rejected the application on the ground that the child has repeatedly called to testify before the Court.
4. The learned Counsel appearing for the petitioners submitted that the victim girl has attained majority and therefore, the bar under Section 33(5) cannot be invoked. That apart, he further submitted that on the next date of hearing itself, 311 application has been filed and therefore, there was no delay on the part of the accused persons. He also relied upon the decision of this Court in S.Ganeshan Vs. State represented by the Inspector of Police, reported in 2022 LiveLaw (Mad) 116. Paragraph No.11 has held as follows:-
“In view of the above, a heavy burden is caused on the petitioner to rebut the presumption which operates against him. As stated above, P.W.2, P.W.7 & P.W.8 are crucial witnesses. If the witnesses are not cross examined, the evidence stands unrebutted and it would amount to a case of no defence resulting in grave prejudice to the petitioner. However, in this case, the victim is now aged about 21 years and she will not fall within the definition of “child” so as to Section 33(5) of the POCSO Act, 2012.”
5. Considering the above said facts, the order impugned in Crl.M.P.No.49 of 2026 in Spl.S.C.No.82 of 2022, is hereby set aside and the Criminal Original Petition stands allowed. The petitioners are directed to complete the cross examination of P.W.1 to P.W.4 on a single day. It is made clear that no further chance will be granted to the accused persons.
