The Karnataka High Court in the case Jayanna B @ Jayaram And State of Karnataka observed and has set aside an order passed by the Special Court wherein the court rejected the application made by an accused being tried under the provisions of the Protection of Children from Sexual Offences Act, (POCSO) for recalling the prosecutrix (victim) from cross-examination.
The Single judge bench headed by Justice K Natarajan in the case observed that as per section 33 of the POCSO Act, the victim/prosecutrix shall not be called frequently for cross examination by the Court. Therefore, the same does not mean that there shall be any opportunity given to the accused for the purpose of cross-examination of the prosecution witness.
In the said case, the petitioner was being booked under Section 4 and 8 of the POCSO Act. The prosecutrix, after examination-in-chief was not being present and she has also been traced by the Police and brought before the Court for the purpose of cross-examination. At the time, it has been submitted by the counsel appearing for the petitioner sought some adjournment which came to be refused. The cross-examination of the prosecutrix was taken as ‘nil’ and the application of petitioner for recalling the witness under section 311 CrPC came to be dismissed.
The bench while going through the records found that there being a defect on the part of the learned counsel for the accused for not cross-examined the prosecution witness and he sought time. At the very first instance, the court rejected and ought to have considered sympathetically and allowed the applicant to cross-examine P.W.1.
The said court also noted in a decision held that the fair trial is a fundamental right which is guaranteed under Article 21 of the Constitution of India, it has been observed by the bench that of course the trail being concluded within one year under the POCSO Act. The said delay should not be curtailed but that does not mean the Court should allow cross-examination without giving a fair opportunity to the accused to defend the case.
Accordingly, the court allowed the application with a cost of Rs.2,000 and it has bee clarified by the counsel appearing for the petitioner shall not be seeking any adjournment when the victim is being present before the Court for cross-examination
