A special court designated under the Protection of Children from Sexual Offences (POCSO) Act on Tuesday refused to recall a 12-year-old child to be cross-examined again by the accused’s advocate, stating that it is in the child's interest that she does not have to relive the trauma.
Special judge under the POCSO Act Nazera S. Shaikh said in her order that Sec 311 of the CrPC empowers the court to recall the witnesses only if it is satisfied that such recalling is essential for a just decision in a case. The court said that such discretion will have to be balanced with the provision under the POCSO Act, in the interest of the child witness such that she does not have to relive the trauma by subjecting her to appear in courts for repeated testimonies.
Judge Shaikh also stated that the apex court has repeatedly emphasised that courts must exercise great caution and circumspection while allowing a plea to recall a witness under Sec 311 of the CrPC.
The victim had deposed in August 2019. The accused, in his early 20s, had sought in March this year that the victim be recalled as his advocate could not cross-examine her on certain aspects. The court noted that the plea for recalling the victim was permitted then and the victim had been produced virtually from Surat, but the defence advocate had not shown up. Thus, though the opportunity was given, the accused failed to avail it. Therefore, it said, he cannot claim that his right to a fair trial has been extinguished. The accused made a plea again to recall her as his advocate was unwell and could not be present. The court remarked that while a vague reason was given that his advocate was ill, no medical papers were shown in support.
As per the complaint lodged at Malabar Hill police station in 2018, the accused who is deaf was also studying in her school. He had asked the then nine-year-old child in the staircase of her school, to remove her undergarment. She said she did not understand, and he asked her to come to the bathroom. Frightened, she had fled. The matter came to light when she refused to go to school. The youth had secured bail a month after arrest.
