THE HONOURABLE SRI JUSTICE K.SURENDER CRIMINAL PETITION No.13434 of 2024

ORDER

This Criminal Petition is filed under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘BNSS’) by the petitioner/accused, seeking to quash the orders dated 21.10.2024, passed in Crl.Mp.No.590 of 2024 in S.C.P.C.No.122 of 2020, by XII Additional Sessions Judge, Hyderabad. By the impugned order, the petition filed under Section 311 of the Cr.P.C., to recall PWs.1 and 2 for cross examination, was dismissed by the trial Court.

2. Heard learned counsel for the petitioner/accused and Sri M.Vivekananda Reddy, learned Assistant Public Prosecutor for respondent/State. Perused the record.

3. Learned counsel for the petitioner submitted that the earlier counsel on record has not cross-examined the witnesses on crucial aspects. He further submitted that since the allegations levelled against the petitioner are serious in nature, prejudice would be caused to the petitioner if the crucial questions are not put forth. Hence, he prayed the Court to allow the Criminal Petition.

4. On the other hand, the learned Assistant Public Prosecutor for respondent-State opposed the submissions of the learned counsel for the petitioner, stating that there is a statutory bar under Section 33(5) of the POCSO Act to recalling the victim in a POCSO case repeatedly to the Court for the purpose of examination. Hence, he prayed the Court to dismiss the Criminal Petition.

5. For better appreciation of the facts, it is relevant to extract Section 33(5) of the POCSO Act, which reads as follows:

33. Procedure and powers of Special Court.— (1) A Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence, or upon a police report of such facts.

(2) The Special Public Prosecutor, or as the case may be, the counsel appearing for the accused shall, while recording the examination-in-chief, cross-examination or re-examination of the child, communicate the questions to be put to the child to the Special Court which shall in turn put those questions to the child.

(3) The Special Court may, if it considers necessary, permit frequent breaks for the child during the trial.

(4) The Special Court shall create a child-friendly atmosphere by allowing a family member, a guardian, a friend or a relative, in whom the child has trust or confidence, to be present in the court.

(5) The Special Court shall ensure that the child is not called repeatedly to testify in the court.

(6) The Special Court shall not permit aggressive questioning or character assassination of the child and ensure that dignity of the child is maintained at all times during the trial.

(7) The Special Court shall ensure that the identity of the child is not disclosed at any time during the course of investigation or trial:

Provided that for reasons to be recorded in writing, the Special Court may permit such disclosure, if in its opinion such disclosure is in the interest of the child.

Explanation.—For the purposes of this sub-section, the identity of the child shall include the identity of the child's family, school, relatives, neighbourhood or any other information by which the identity of the child may be revealed.

(8) In appropriate cases, the Special Court may, in addition to the punishment, direct payment of such compensation as may be prescribed to the child for any physical or mental trauma caused to him or for immediate rehabilitation of such child.

(9) Subject to the provisions of this Act, a Special Court shall, for the purpose of the trial of any offence under this Act, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session, and as far as may be, in accordance with the procedure specified in the Code of Criminal Procedure, 1973 (2 of 1974) for trial before a Court of Session.

(Emphasis Supplied)

6. A plain reading of the above would abundantly make it clear that Section 33(