Shashwati Chowdhury
Published on: June 20, 2022 at 17:48 IST
The Karnataka High Court has held that the rigours of Section 33(5) of the Protection of Children from Sexual Offences Act (POCSO Act), which bars repeated examination of a child survivor, are diluted when the survivor attains the age [Mahammad Ali Akbar vs State of Karnataka].
As a result, such a survivor may be called to court for further examination, a Single-Judge Justice M Nagaprasanna held.
The Court emphasised that after the child reaches the age of majority, there is no bar to calling her to testify before the court on multiple repeatedly.
“Once a victim crosses the age of 18, the rigour of Section 33(5) of the Act is diluted because the child-victim is not called for repeated cross-examination or re-examination. On the child attaining 18 years of age, the rigor under Section 33(5) of the Act gets diluted and sequentially, will not become a bar for seeking further cross-examination of the victim under Section 311 of the CrPC,” the Judge held.
In this case, the Judge noted that the girl was 15 years old when the First Information Report (FIR) was filed, and she is now 18 years old.
The Bench further said that because there is a presumption against the accused in a POCSO case under Section 29 of the Act, it is even more important for the accused to present evidence to counter that presumption.
The Bench was hearing a Plea challenging decisions of a special POCSO court that dismissed the Appellant’s plea for recall of the victim in the case so that he could cross-examine her further. The Special Court dismissed the plea based on section 33(5) of the POCSO Act.
However, Justice Nagaprasanna observed the appellant’s submission that the survivor’s father had said in his testimony before the court that appellant was a relative and had never subjected his daughter to any sexual act and that they both loved each other.
As a result, recalling the survivor to testify would be necessary to ensure that the trial does not result in any miscarriage of Justice, the Court ruled.
Advocate Syed Muzakkir Ahmed represented the accused, while Government Pleader K P Yashodha represented the State.