Accused’s right to recall witness U/S 311 CrPC cannot always be denied instead of prosecutor’s right U/S 33(5) POCSO Act: Orissa High Court

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the Orissa High Court ruled that the right of an accused to recall witnesses under Article 311 CrPC can only be refused because there is a right of action under Section 33(5) Protection of Children against Sexual Offenses Act 2012 (“POCSO Law”). Said provision requires the Special Court to ensure that the child (prosecutor) is not repeatedly called to testify in court.

While authorizing the motion for review, a single judge bench composed of Justice SK Panigrahi tenuous,

“The provisions of Section 33 set forth a general principle which shall guide the trial court and is similar to Section 309 Cr.PC, being in the nature of statutes to ensure a speedy trial. However, under Sections 4 and 5 of the Cr. PC, Section 311 Cr.PC takes precedence because no specific procedure is provided by the POCSO Act for the recall of a witness Section 42A of the POCSO Act clarifies that the Act does not derogates from any other law.

Quick facts:

The petitioner is the defendant in a case pending before the Court of Scholars District and Additional Session Judge ad hoc, (FTSC), Jeypore instituted by the Opposing party no. 2 for the alleged commission of offenses punishable Sections 376(2)(n)/450/506 of the CIP read with Division 4 of the POCSO law. He made a prayer in this petition under Section 401 of Cr.PC for put aside the order of the Ad Hoc Additional District and Sessions (FTSC) Judge, Jeypore, who dismissed his motion filed under Section 311 of the Code to recall prisoners of war. 1, 2 and 3 for their cross-examination.

Arguments of the Applicant:

Lawyer Saroj Kumar Padhy, counsel for the applicant argued that PW1 and 2 are important witnesses. PW3 is the victim girl. Unless the accused petitioner is given the opportunity to cross-examine the aforementioned witnesses, his rights will be seriously prejudiced. He relied on the case of Dharam Pal v. Haryana State and held that the fundamental right of an accused is to have a fair trial, which presupposes a fair investigation and that without a fair investigation there can be no fair trial.

But, in this case, the investigation was not carried out properly and in the absence of a proper investigation, the elements on which the accusation is based are not sufficient to frame the accusation. Furthermore, the case in question is different because here further cross-examination was denied to the petitioner for the examination of prosecution witnesses.

He further argued that the intent underlying the enactment Section 33(5) of the POCSO Act is only to ensure that, in a real case, the child victim is not harassed, but this cannot be used as a shield by the trial court to deprive the accused of a right to proper cross-examination and therefore a right to a fair trial.

Defendant’s arguments:

Additional Permanent Councilor for the State Mr MK Mohanty vehemently opposed the petition for review and argued that the trial court had properly dismissed the petitioner’s request. He further contended that the applicant had been given the opportunity to cross-examine the prisoners of war. 1 to 3. Here again, the request for recall of the 14-year-old minor/victim is rejected Section 33(5) from POCSO Act which stipulates that the child should not be called repeatedly to testify in court.

Observation and decision of the Court:

The Court relied on the judgment of Godrej Pacific Tech. Ltd v Computer Joint India Ltd. where it was ruled by the Apex Court that it is obligatory for a court to recall a witness for further cross-examination if his testimony appears to be essential for a just decision of the case. Nothing prevents a court from recalling a witness for further cross-examination. He was also judged in this case,

“The article (article 311, CP cr) is obviously in two parts. While the word used in the first part is “may”, the second part uses “shall”. Accordingly, the first part gives a purely discretionary power to a criminal court and allows it, at any stage of an investigation, trial or proceeding under the Code, (a) to call any person as a witness, or (b) to question any person present at the court, or (c) to recall and re-examine any person whose testimony has already been recorded. the second part is mandatory and obliges the court to take any of the above-mentioned measures if the new evidence appears to it to be essential to the just decision of the case.”

The court mentioned Vimal Khanna v. State, 2018 CSC online Del 11796, in which the Delhi High Court held that denial of the opportunity to cross-examine witnesses violates a defendant’s constitutional guarantee and vitiates a fair trial. The same affirmation was followed in Mohd. Gülzar c. The State (GNCTD), 2018 (4) JCC 2291, where the Court held that since the right of cross-examination is a valuable right, the right of the child under section 33(5) of the POCSO Act must be balanced against the aforementioned rights of the accused and thus allowed the accused to cross-examine the alleged victim once more.

In addition, the Court relied on BC [email protected] c. state of karnataka, where the Supreme Court insisted on the power to recall a witness at the request of either party to ensure justice.

Accordingly, the Court came to the conclusion and observed,

“…this Court is of the opinion that the cross-examination of prosecution witnesses being an essential right of the accused, it is obvious that the non-cross-examination of the said witnesses will prejudice the applicant. In such circumstances, it is not unfair to allow the petitioner to cross-examine PWs 1-3 by recalling them.”

The Court ordered the Judge ad hoc for the District and Additional Session (FTSC) to recall these witnesses for cross-examination. At the same time, it was clarified that the Court must take measures to recall the child witness in one go without disturbing him again and again.

Case title: Pidika Sambaru v. State of Odisha & Anr.

Case no: CRLREV No. 490 of 2021

Judgment date: March 04, 2022

Koram: Justice SK Panigrahi

Counsel for the Applicant: Lawyer Saroj Kumar Padhy

Counsel for the opposing party: Attorney MK Mohanty, Addl. Permanent Council

Quote: 2022 LiveLaw (Ori) 21

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