The Karnataka High Court has passed a judgment on 13th February, 2023 set aside an order passed by the Special Court which rejected the application made by an accused being tried under the provisions of the Protection of Children from Sexual Offences Act, (POCSO) to recall the prosecutrix (victim) from cross-examination.This was in the case Jayanna B @ Jayaram v. State of Karnataka and this is presided over by a single bench of Justice K Natarajan.
FACTS OF THE CASE:
This petition is filed by the petitioner-accused under Section 482 of Cr.P.C. setting aside the order of dismissal of the application under Section 311 of Cr.PC. The petitioner accused is facing trial before the Special Court (POCSO Court) for the offences punishable under Sections 4 and 8 of the POCSO Act.The cross-examination of the prosecutrix said to be remain absent for cross-examination and the Police have brought her back for cross-examination. Learned counsel for the petitioner is said to have sought some adjournment for cross-examination which came to be rejected and cross-examination of P.W.1 was taken as ‘nil.’ Thereafter, the application filed by the learned counsel for the petitioner for recalling P.W.1 for the purpose of cross-examination came to be rejected and the matter was posted for final arguments. Thereafter, the application filed by the petitioner came to be dismissed.
A single judge bench of Justice K Natarajan observed, “Of course, as per Section 33 of the POCSO Act, the prosecutrix/victim and shall not be called frequently for crossexamination by the Court. However, that does not mean there shall not be any opportunity given to the accused for the purpose of prosecution cross-examination of the prosecution witness.”
This Court held that “fair trial is a fundamental right which is guaranteed under Article 21 of the Constitution of India. Of course, the trial is to be concluded within one year under the POCSO Act. The delay should be curtailed but that does not mean the Court should allow cross-examination without giving a fair opportunity to the accused to defend the case. The trial Court ought to have given one more opportunity to the petitioner for cross-examination of the witness. Accordingly, the order of the trial Court deserves to be set aside.”
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JUDGEMENT REVIEWED BY PRATIKSHYA P. BEURA