Source: Supreme Court

Why in News?

A bench of Justice Sudhanshu Dhulia and Justice Ahsanuddin Amanullah held that once ample opportunities are given to cross examine the victim allowing an application for recall under Section 311 of CrPC would defeat the purpose of Protection of Children from Sexual Offences Act, 2012 (POCSO).

• The Supreme Court held this in the case of Madhab Chandra Pradhan & Ors v. State of Odisha.

What is the Background of Madhab Chandra Pradhan & Ors v. State of Odisha Case?

• The petitioners kidnapped the minor victim girl and brought her to the village of his maternal uncle.
• It is the case of the prosecution that the petitioner (accused) got her married to the other accused.
• It is also the case of the prosecution that the accused person forcibly made sexual relations with the victim.
• The victim was ultimately rescued by her parents.
• The case was registered against the accused under Section363, 366, 376 (2) and Section 109 read with Section 34 of Indian Penal Code, 1870 (IPC) and Section 4,6 and 17 of Protection of Children from Sexual Offences Act, 2012 (POCSO), read with Sections 9, 10 and 11 of Prohibition of Child Marriage Act, 2006 (PCMA).
• Application filed under Section 311 of Criminal Procedure Code, 1973 (CrPC):
  • The petitioners had filed an application under Section 311 of CrPC to recall the victim for the purpose of reexamination as a witness.
  • This application was dismissed by the Special Court.
  • The petitioner approached the High Court under Section 482 of CrPC to assail the order of the Special Court rejecting their application under Section 311 of CrPC.
  • The Application before the High Court was also dismissed.
  • Hence, the petitioners have approached the Supreme Court.

What were the Court’s Observations?

• There are two provisions at play in this case: Section 311 of the CrPC and Section 33 (5) of the POCSO Act, 2012.
• The Issue to be determined here is:
  • Whether in exercise of its powers under Section 311 of CrPC the Special Court ought to have recalled the victim for re-examination as witness, keeping in mind the mandate under Section 33 (5) of the Act?
• In the case of State (NCT of Delhi) v. Shiv Kumar Yadav (2016), the Supreme Court laid down the guidelines for the plea of recall of witness under Section 311 of CrPC.
  • The plea for recall of a witness under Section 311 must be bona fide and genuine.
  • 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.
• The Court held that it is amply clear in this case from the perusal of the record of the case that ample opportunities were given to the defence counsel to cross-examine the victim
• It was observed that when the victim has been examined and then cross examined at length twice mechanically allowing the application for recall of victim especially in trial under POCSO Act would defeat the very purpose of the statute.
• Hence, the Court held that there was no error or illegality in the order passed by the High Court or the Special Court.

What are Special Courts under POCSO Act, 2012?

• Section 28 of POCSO Act, 2012 provides for designation of Special Courts.
• The State Government shall in consultation with the Chief Justice of the High Court designate for each district a Court of Session to be a Special Court to try offences under the Act. (Section 28 (1))
• If any Court has been designated as
  • Children’s Court under Commission for Protection of Child Rights, 2005, or
  • A special Court under any other law
    Such Court shall be deemed to be a Special Court.
• As per Section 28 (2) of POCSO Act, a Special Court shall also try an offence, with which the accused may, under the CrPC, be charged at the same trial.
• As per Section 28 (3) of the Act the Special Court shall have jurisdiction to try offences under Section 67B of the Information Technology Act, 2000.
• As per Section 31 of POCSO Act the provisions of CrPC shall apply to proceeding before the Special Court save otherwise provided in the Act.
• Also, the Special Court shall be deemed to be a Court of Session and the person conducting prosecution shall be deemed to be a Public Prosecutor.

What is the Victim Friendly Provisions with Respect to Trial under POCSO Act, 2012?

• Section 33(2):
  • The Special Public Prosecutor and the counsel for the accused while recording the examination-in-chief, cross examination and re-examination of the child shall communicate the questions to the Special Court who shall in turn put such questions to the child.
• Section 33 (3):
  • The Special Court may permit frequent breaks to the child during trial.
• Section 33 (4):
  • The Special Court shall create a child-friendly atmosphere by allowing a family member, a guardian, a friend or a relative, in whom the child has trust or confidence, to be present in the court.
• Section 33 (5):
  • The Special Court shall ensure that the child is not called repeatedly to testify in the court.
• Section 33 (6):
  • The Special Court shall not permit aggressive questioning or character assassination of the child and ensure that dignity of the child is maintained at all times during the trial
• Section 33 (7):
  • The Special Court shall ensure that the identity of child shall not be disclosed at any time during the course of investigation or trial
  • For reasons to be recorded in writing the Special Court may permit such disclosure if it is in the interest of the child.
  • The Explanation provides that the identity of the child includes the identity of child’s family, school, relatives, neighborhood or any other information by which identity of the child may be revealed.
• Section 33 (8):
  • The Special Court may in addition to the punishment, direct payment of such compensation as may be prescribed to the child for any physical or mental trauma caused to him or for immediate rehabilitation of such child.
• Section 36:
  • The Court shall ensure that the victim is not exposed in anyway to the accused, at the same time ensuring that the accused can hear the statement of the child and communicate with his advocate.
  • The Special Court may record the statement of a child through video conferencing or by single visibility mirrors or by curtains or other device.
• Section 37:
  • The Special Court shall try cases in camera and in the presence of the parents of the child or any other person in whom the child has trust or confidence.
  • Proviso to Section 37 provides that where the Special Court is of the opinion that the child needs to be examined at a place other than the court, it shall proceed to issue a commission in accordance with the provisions of Section 284 of the CrPC.
• Section 38:
  • While recording the statement of a child the Court may take help of a translator or an interpreter.
  • If a child is mentally or physically disabled, the Court may take help of a special educator.