Child Who Suffered a Traumatic Experience of Sexual Assault Should not be Called Time and Again to Testify About the Same Incident, says SC in POCSO Case

In a recent order, the Supreme Court (SC) of India dismissed a plea of an accused seeking recall of the victim under Section 311 of the Code of Criminal Procedure (CrPC) who was already cross-examined by the defence. The petitioners were accused of offences under Sections 363, 366, 376 (2) & 109 read with Section 34 of the Indian Penal Code, 1870, and Sections 4, 6 & 17 of the POCSO Act read with Sections 9, 10 & 11 of Prohibition of Child Marriage Act, 2006. The bench of Justice Sudhanshu Dhulia and Justice Ahsanuddin Amanullah dismissed the plea and observed, “When the victim has been examined and then cross-examined at length twice already, mechanically allowing an application for recall of the victim, especially in trial of offences under the POCSO Act would defeat the very purpose of the statute.” This observation was based on Section 33(5) of the POCSO Act. The Court observed, “A bare perusal of Section 33 (5) of the Act indicates that a duty is cast upon the Special Court to ensure that a child is not repeatedly called to give his/her testimony before the court. The legislative intent behind this provision is clear. It is to ensure that the child who has suffered a traumatic experience of sexual assault is not called time and again to testify about the same incident.”

The primary question addressed in this case was “Whether in the exercise of its powers under Section 311 of the CrPC, the Special Court ought to have recalled the child/victim for re-examination as witness, keeping in mind the mandate under Section 33 (5) of the Act.” To answer this question, the bench relied on the judgment of the Shiv Kumar Yadav case. It said, “...first, the plea for recall of a witness under Section 311 must be bona fide and genuine. Secondly, applications for recall of a witness under Section 311 should not be allowed as a matter of course and the discretion given to the Court must be exercised judiciously, not arbitrarily.” Moreover, the top court in its order expressed the legality of the order passed by the High Court and Special Court. It observed, “What weighed with the Special Court, while dismissing their application was the fact that the after having availed their first opportunity to cross-examine the victim on 22.07.2023, the accused sought an adjournment which was granted and thus they were given a second opportunity to cross-examine the victim on 14.08.2023 and on this day, their advocate cross-examined her at length but again sought an adjournment which was disallowed as there was no justification for seeking an adjournment.” It added, “Since the accused did not challenge this order of rejection, the Special Court observed that its findings in the said order that there was no justification to adjourn or defer cross-examination to a later date had attained a finality. The Special Court also placed its reliance on Section 33 (5) of the Act and emphasized that it is mandated to ensure that the child is not repeatedly called to testify before it.”

Lastly, the SC said, “..it is abundantly clear that ample opportunities were given to the defence counsel to cross-examine the victim. When the victim has been examined and then cross-examined at length twice already, mechanically allowing an application for recall of the victim, especially in trial of offences under the POCSO Act would defeat the very purpose of the statute. Hence, we find no error or illegality in the impugned order of the High Court or the Order dt. 10.10.2023 of the Special Court.” After considering all the aspects, the top court said there was no reason to interfere with the impugned order passed by the High Court; therefore, the Special Leave Petition filed by the petitioners was dismissed.