Orissa High Court: In an application filed under Section 482 of the Code of Criminal Procedure, 1973 (‘CrPC’) wherein the petitioner was aggrieved by the order dated 03-04-2024 in which his application under Section 311 of the CrPC seeking to recall the victim was turned down, Sibo Sankar Mishra, J. viewed that there is no absolute bar under Section 33(5) of the POCSO Act to recall a victim witness but each case must be evaluated based on its own evidence and the necessity of recalling the child victim.
Analysis and Order
The Counsel for the State contended that application under Section 311 of the CrPC seeking recalling of the victim witness in a POCSO case is barred under Section 33(5) of the POCSO Act.
The Court referred to Pidika Sambaru v. Sate of Odisha, 2022 SCC Online Ori 802; A through Guardian v. State, 2023 SCC OnLine Del 6471; Mahammad Ali Akbar v. State of Karnataka, 2022 SCC OnLine Kar 1048 and said that Section 33(5) of the Protection of Children from Sexual Offences, 2012 (‘POCSO’) Act does not impose an absolute bar on recalling a victim witness and each case must be evaluated based on its own evidence and the necessity of recalling the child victim. However, the Court clarified that the legislator’s intention is to ensure that the minor victim is not repeatedly called to Court under the pretext of cross-examination, as this would add to their ordeal. For the matter at hand, the Court said that although the petitioner’s application under Section 311 of the CrPC seeking to recall the victim witness was maintainable, but it was dismissed on merits.
The Court on perusal of the questions noted that nearly all of the questions were already asked to the victim witness, and some were entirely irrelevant and could be directed to other witnesses, such as the victim’s parents or the Investigating Officer.
The Court also clarified that the Section 33(5) of the POCSO Act imposes a statutory bar on repeatedly recalling the victim to the Court for examination. Hence, the Court refused to allow the application and to interfere with the impugned order since dismissing the same would not prevent the petitioner from recalling other witnesses to address the questions listed in the application under Section 311 of the CrPC.
[Tapas Swain v. State of Orissa, 2024 SCC OnLine Ori 1466, Order dated: 17-05-2024]
Advocates who appeared in this case :
Counsel for the Petitioner: Senior Advocate D.P. Dhal
Counsel for the Opposite Party: Addl. Standing Counsel, P.K. Maharaj
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