MADHAB CHANDRA PRADHAN & ORS.  [PETITIONERS]  Vs. STATE OF ODISHA  [RESPONDENT]

SPECIAL LEAVE PETITION (CRL.) No. 10082 OF 2024

(2JB, SUDHANSHU DHULIA and AHSANUDDIN AMANULLAH JJ.)

The Supreme Court recently dismissed a plea by an accused under the Protection of Children from Sexual Offences (POCSO) Act, 2012, seeking to recall the victim for further cross-examination under Section 311 of the Criminal Procedure Code (CrPC). The victim had already been cross-examined by the defense. The Court emphasized that allowing such a request would undermine the purpose of the POCSO Act, which aims to protect children from the trauma of repeated court appearances.

The bench, comprising Justices Sudhanshu Dhulia and Ahsanuddin Amanullah, noted that the victim had been examined and cross-examined extensively twice. The Court warned against mechanically granting requests to recall the victim, particularly in cases under the POCSO Act, as it would defeat the statute’s intent. The decision was rooted in Section 33(5) of the POCSO Act, which mandates that Special Courts must ensure that a child is not repeatedly called to testify. This provision is intended to prevent the further traumatization of a child who has already endured the distress of a sexual assault.

The petitioners’ counsel argued that Section 33(5) of the POCSO Act does not completely prohibit recalling a child witness for re-examination. They contended that this section does not restrict the Special Court’s authority under Section 311 of the CrPC to recall or re-examine any previously examined person. The counsel emphasized that Section 311 provides the court with the discretion to recall witnesses, which should be considered before addressing the specific facts of the case.

The Court clarified that while Section 33(5) does not impose an absolute ban on recalling a victim for re-examination, each case must be considered on its specific facts and circumstances. This nuanced approach acknowledges that there may be situations where recalling the victim is justified, but such decisions should be made carefully.The Supreme Court referenced the case of State (NCT of Delhi) v. Shiv Kumar Yadav (2016), where it was established that requests to recall witnesses under Section 311 of the CrPC must be both bona fide and genuine. Additionally, such requests should not be granted automatically; rather, the Court’s discretion must be exercised judiciously and not arbitrarily.

In the present case, the Court found that the defense had been given ample opportunities to cross-examine the victim. Consequently, it would not serve the interests of justice to allow the recall application. The Special Leave Petition filed by the accused was therefore dismissed.This ruling underscores the Supreme Court’s commitment to safeguarding the well-being of victims, particularly children, in legal proceedings. By ensuring that victims are not subjected to unnecessary repeated questioning, the Court reinforces the protective measures enshrined in the POCSO Act. The decision highlights the importance of balancing the rights of the accused with the need to prevent further harm to victims, particularly in sensitive cases involving children.