Source – Delhi High Court

Why in News?

Recently, the Delhi High Court in the case of Rakesh v. State of NCT of Delhi & Anr., has observed that the Protection of Children from Sexual Offences Act, 2012 (POCSO) is a gender-neutral legislation and that it is insensitive to argue that the law is being misused.

Background

• The court was hearing the accused’s plea challenging a trial court order dismissing his application to recall the minor victim, who was aged seven years at the time of the incident and her mother.
• The accused had allegedly committed rape upon the prosecutrix, following which, an First Information Report (FIR) was registered under Section 6 of the POCSO Act in October 2016.
• The examination-in-chief and cross-examination of the prosecutrix and of the complainant i.e., mother of the prosecutrix was concluded in October 2018.
• The accused had moved an application under Section 311 of the Criminal Procedure Code, 1973 (CrPC) seeking directions to re-call the prosecutrix and her mother on the grounds that the cross-examination was not conducted properly.
• The High Court dismissed the plea and held that mere incompetence of a previous counsel cannot be the ground to re-call a witness for cross-examination and the cross examination was conducted at length.

Court’s Observations

• The Court observed that though the accused has to be granted and ensured a fair trial, it cannot mean being afforded unjustified repeated opportunities of cross-examination in every case to indicate fair trial.
• Further, Justice Swarana Kanta Sharma said that POCSO Act is not gender based and is neutral as far as victim children are concerned.
• The Court further added that any law, whether gender based or not, has the potential of being misused, the court added that the legislature cannot stop enacting laws nor judiciary stop applying them only because they can be misused.

Legal Provisions

POCSO Act, 2012

• This Act was passed in 2012 under the Ministry of Women and Child Development.
• It is a comprehensive piece of legislation designed to protect children from crimes including sexual assault, sexual harassment, and pornography.
• It is gender neutral act and considers welfare of the child as a matter of paramount importance.
• It provides for the establishment of Special Courts for trial of such offences and related matters and incidents.
• Death penalty as a punishment for offences of penetrative sexual assault and aggravated penetrative sexual assault was introduced in this act by the POCSO amendment bill, 2019.
  • Section 4 of this Act prescribes punishment for penetrative sexual assault.
• Under Section 2(1) (d) of the POCSO Act, a child is defined as any person below the age of 18 years.
• Section 6 of the POCSO Act deals with the punishment for aggravated penetrative sexual assault.
• It states that, whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine, or with death.

Section 311, CrPC

• Section 311 of CrPC deals with the power of the Court to summon material witnesses or examine person present.
• It states that any Court may, at any stage of any inquiry, trial or other proceeding, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re- examine any person already examined.

Cross-Examination

• An examination is simply the process of asking relevant questions relating to the fact in issue to a witness.
• Section 137 of Indian Evidence Act, 1872 (IEA) deals with the ways in which a witness can be examined. It states the following three ways.
  • Examination-in-Chief - The examination of witness by the party who calls him shall be called his examination-in-chief.
  • Cross-Examination – The examination of a witness by the adverse party shall be called his cross-examination.
  • Re-Examination - The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.
• Section 138 of IEA deals with the order of examinations.
  • It states that witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.
  • The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.
• IEA has laid down the following set of guidelines for cross-examination.
  • As per Section 139, a person summoned to produce a document cannot be cross-examined unless and until he is called as a witness.
  • As per Section 140, witnesses to character may be cross-examined and re-examined.
  • According to Section 143, leading questions may be asked in cross-examination.
  • As per Section 145, a witness may be cross-examined as to previous statements made by him in writing or reduced into writing.
  • Section 146 talks about questions lawful in cross-examination. It states that when a witness is cross-examined, he may be asked any questions which tend –
    • to test his veracity
    • to discover who he is and what is his position in life
    • to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or expose him to a penalty or forfeiture.