Kolkata, February 11 The Calcutta High Court has allowed the re-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 overturned a trial court order that disallowed a request for the re-examination of seven key witnesses, but agreed with the judge's observation that vulnerable witnesses in POCSO matters should not be called repeatedly at the instance of the accused on flimsy grounds.
The judge of the trial court in North and Middle Andaman had rejected the petitioner's plea on the ground that the Supreme Court had held that recall of victim/witnesses in POCSO matters should be avoided unless it is absolutely essential.
In the judgment passed by the Port Blair circuit bench of the Calcutta High Court on February 5, Justice Ray said that the observation of the special POCSO court judge was "absolutely correct", and there was "no room for doubt", but "each case has to be judged on its own merits".
The trial court judge had rejected the petitioner's request to recall seven prosecution witnesses for re-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 the Indian Penal Code (IPC) and the 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 years of rigorous imprisonment were overturned 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 to the high court that the relevant case had a complex history.
He stated that on August 31, 2022, the trial judge convicted the accused, but the high court overturned the judgment in an appeal on April 9, 2024, and directed the trial judge to examine the accused and write a fresh judgment.
In view of such directions, the trial judge completed the examination of the accused, but after this, the accused filed an application for the re-examination of several witnesses.
The newly-appointed lawyer on behalf of the accused claimed to have found that the cross-examination of vital witnesses had not been properly conducted by the erstwhile counsel of the accused, but this application was rejected by the trial judge.
The petitioner's lawyer contended that if the accused's request is not allowed, he would be prevented from putting up a proper defense and may suffer irreparable loss due to the fault of his erstwhile counsel.
Opposing the request, the counsel for the state contended that the law does not allow the defense to fill the gaps that arise during the 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 although the victim and vulnerable witnesses have been given sufficient protection and privilege under the prevailing laws, 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 and casual, and if such cryptic cross-examination is allowed to remain on 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 re-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.
Overruling the POCSO court's order refusing the application of the accused, Justice Ray directed the special judge to allow the prayer for the re-examination of the prosecution witnesses.
