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MADRAS HIGH COURT
Honourable Mr Justice K.MURALI SHANKAR
A.Maruthan – Appellant
Versus
The Inspector – Respondent
CRL OP(MD)/21589/2022
POCSO ACT - RECALL OF WITNESSES - SECTION 311 CRPC - [THE COURT HELD THAT THE PETITIONER SHOULD BE GIVEN ONE MORE OPPORTUNITY TO CROSS EXAMINE THE WITNESSES, SUBJECT TO PAYMENT OF COSTS AND THE CONDITION THAT THE CROSS-EXAMINATION MUST BE COMPLETED ON THE DAY THE WITNESSES ARE PRODUCED IN COURT.]
Fact of the Case:
The petitioner, accused of offenses under the POCSO Act, filed a petition under Section 311 CrPC seeking permission to recall P.W.1 to P.W.6 for cross-examination, claiming that his counsel was not available when the witnesses were previously examined. The trial court dismissed the petition, finding that it was filed belatedly and with the intention to delay the trial.
Finding of the Court:
The High Court allowed the petition, setting aside the trial court's order. The court held that the petitioner should be given one more opportunity to cross-examine the witnesses, subject to payment of costs and the condition that the cross-examination must be completed on the day the witnesses are produced in court.
Issues: Whether the petitioner should be allowed to recall witnesses for cross-examination after they have already been examined in chief.
Ratio Decidendi: The court relied on the following principles:- The bar under Section 33(5) of the POCSO Act against recalling child witnesses is not absolute and can be lifted in appropriate cases.- The petitioner had not previously cross-examined the witnesses and was facing serious charges under the POCSO Act.- The petitioner's delay in filing the petition was a factor to be considered, but it did not outweigh the need for a fair trial.
Final Decision: The High Court allowed the petition and directed the trial court to summon the witnesses for cross-examination within one month.
Crl.O.P.(MD) No.21589 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 13.12.2022
Delivered on : 03.01.2023
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
CRL.O.P.(MD).No.21589 of 2022
and
CRL.M.P(MD)No.15216 of 2022
A.Maruthan
: Petitioner
Vs.
State rep.by it is
The Inspector of Police,
All Women Police Station,
Usilampatti, Madurai District.
Crime No.8 of 2020
: Respondent
PRAYER: Criminal Original Petition filed under Section 482 Cr.P.C, to call
for the records in Crl.M.P.No.1138 of 2022 in Spl.S.C.No.119 of 2020 on the
file of the Sessions Judge, Principal Special Court for Exclusive Trial of
Cases under POCSO Act, Madurai, dated 04.11.2022 and set aside the same
and consequently, direct the learned Sessions Judge, Principal Special Court
for Exclusive Trial of Cases under POCSO Act, Madurai to recall the
witnesses for cross examination namely P.W.1 to P.W.6.
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Crl.O.P.(MD) No.21589 of 2022
For Petitioner : Mr.S.M.Aantha Murugan,
For Respondent : Mr. R.Sivakumar,
Government Advocate(Crl.Side)
ORDER
This Criminal Original Petition filed, under Section 482 of Cr.P.C., is
directed against the order passed in Crl.M.P.No.1138 of 2022 in Spl.S.C.No.
119 of 2020, dated 04.11.2022, on the file of the Sessions Judge, Principal
Special Court for Exclusive Trial of Cases under POCSO Act, Madurai.
2. The petitioner is the sole accused in Spl.S.C.No.119 of 2020 on the
file of the Principal Special Court for Exclusive Trial of Cases under POCSO
Act, Madurai and is charged for the offences under Section 5(l), 6 of POCSO
Act and under Section 506(i) IPC.
3.It is not in dispute that the trial has already been commenced and out
of 18 witnesses, six witnesses have already been examined and that when the
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Crl.O.P.(MD) No.21589 of 2022
case stood posted for further evidence, the above petition in Crl.M.P.No.1138
of 2022 came to be filed under Section 311 of Cr.P.C, seeking permission to
recall P.W.1 to P.W.6 for cross examination.
4.The petitioner's case is that when the witnesses P.W.1 to P.W.6 were
examined, his counsel was not available; that the above witnesses are material
witnesses; that due to non-availability of the defence counsel, the said
witnesses were not cross examined; that their failure to cross examine the said
witnesses is neither willful nor wanton; that the petitioner will be put to great
prejudice, if the said witnesses are not cross examined and that therefore, the
petitioner was constrained to file the above petition under Section 311 Cr.P.C.
5.No doubt, the respondent has raised serious objections for allowing
the said petition. The learned Sessions Judge, after enquiry, has passed the
impugned order, dated 04.11.2022 dismissing the said petition. Aggrieved by
the said dismissal order, the accused has come forward with the present
petition invoking Section 482 Cr.P.c for setting aside the impugned order.
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Crl.O.P.(MD) No.21589 of 2022
6. It is not in dispute that P.W.1, who is the victim girl was examined in
Chief on 08.10.2021; that P.W.2 to P.W.5 were examined in Chief on
18.03.2022 and that P.W.6 was examined in Chief on 12.04.2022. The learned
trial Judge by observing that the accused as well as his counsel were not
interested and not actively participated in the trial; that the above petition
came to be filed belatedly; that the above petition was filed only to delay the
trial and drag on the case and that there may be chances to gain over material
witnesses to turn hostile to the case of the prosecution, as the case is pending
for long time for the purpose of cross examination, has come to a decision
that the petitioner is not entitled to get the relief, dismissed the petition. The
learned trial Judge has rightly quoted the judgment of Hon'ble Supreme Court
in Vinod Kumar Vs. State of Punjab reported
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