Calcutta High Court makes exception, allows recross-examination of witnesses in POCSO case

Kolkata: The Calcutta High Court has allowed recross-examination of witnesses in a POCSO case, making an exception to the established norm of not recalling victims or witnesses in cases of sexual abuse of minors, and observed that each matter must be judged on its merits.

Justice Apurba Sinha Ray set aside a trial court order that disallowed a prayer for recross-examination of seven key witnesses, but agreed with the judge's observation that vulnerable witnesses in POCSO matters should not be called time and again at the instance of the accused on flimsy grounds.

The judge of the trial court in North and Middle Andaman had rejected the prayer of the petitioner on the ground that the Supreme Court had held that recall of victim/witnesses in POCSO matters should be avoided unless the same is absolutely essential.

In the judgment passed by the Port Blair circuit bench of the Calcutta High Court on February 5, Justice Ray said the observation of the special POCSO court judge was "absolutely correct", and there were "no two opinions", but "each case has to be judged on its own merits".

The trial court judge had rejected the petitioner's prayer for recalling seven prosecution witnesses for recross-examination in a case in which the accused was charged under sections 6 (sexual assault), 12 (sexual harassment of a child) of the Protection of Children from Sexual Offence (POCSO) Act, 2012, and various sections of Indian Penal Code (IPC) and Information Technology Act.

The appellant was convicted by the special POCSO court judge for the rape of a girl in 2022. His conviction and sentence of 10-year rigorous imprisonment was set aside by a division bench of the high court's Port Blair circuit bench in 2024, and a re-examination of the appellant was ordered.

The petitioner submitted before the high court that the relevant case had a chequered history.

He stated that on August 31, 2022, the trial judge convicted the accused, but the judgment was set aside by the high court in an appeal on April 9, 2024, and the trial judge was directed to examine the accused and to write the judgment afresh.

In view of such directions, the trial judge completed the examination of the accused, but after this, the accused filed an application for recross-examination of several witnesses.

The newly-appointed advocate on behalf of the accused claimed to have found that the cross-examination of vital witnesses were not properly done by the erstwhile counsel of the accused, but this petition was rejected by the trial judge.

The petitioner's lawyer contended that if the prayer of the accused is not allowed, he would be prevented from putting up real defence and may suffer irreparable loss for the fault of his erstwhile counsel.

Opposing the prayer, the counsel for the state contended that law does not allow the defence to fill up the lacuna which arises during examination and cross-examination of the prosecution witnesses.

He also claimed that the petition was filed only to delay the proceedings before the trial judge, as the petitioner was already on bail.

After taking note of the arguments by the parties, the Port Blair circuit bench of the Calcutta High Court said that it appears that although the victim and vulnerable witnesses have been given sufficient protection and privilege under the prevalent law of land, but the right of the accused to defend himself with competent legal advice should not be lost sight of.

Finding "some merits" in the contention of the petitioner's counsel, Justice Ray said that the "cross-examination of prosecution witnesses done on behalf of the accused appears to be deficient, casual, and if such cryptic cross-examination is allowed to remain on the record then there are chances that the accused may not be able to defend his case properly in accordance with law".

"I think that the prayer for recross-examination of the prosecution witnesses on the points mentioned in the revisional application should be allowed since it is absolutely essential for the accused to defend his case properly," the court said.

Setting aside the POCSO court's order refusing the application of the accused, Justice Ray directed the special judge to allow the prayer for recross-examination of the prosecution witnesses.