- The Hon’ble Odisha HC has, in Pidika Sambaru vs State of Orissa and anr has held that the right of the accused to recall witnesses under section 311 of CrPC cannot always be denied merely on the ground of the right of the prosecutrix under section 33(5) of the POCSO Act which provides that the Special Court has to ensure that the child (prosecutrix) is not called to the Court repeatedly.
- Section 311 of CrPC empowers the trial Court to summon any person as a witness, or recall and re-examine any person who has already been examined. The Court can do so at any stage of the investigation, inquiry or trial, if the Court considers that the evidence of such a person is essential to the just decision of the case.
- In the instant case, a revision application was filed by the accused against the order of the Additional District and Sessions Judge rejecting his petition filed under section 311 of CrPC to recall two of the prosecution witnesses for their re-examination. The applicant/accused was accused of committing an offense under section 376(2)(n)/450/506 of IPC read with section 4 of POCSO.
- The Counsel for the applicant/accused contended that the cross-examination of the two witnesses, if disallowed, would be highly prejudicial to the interests of the accused. Reliance was placed upon the decision of the Apex Court in Dharam Pal vs. State of Haryana wherein it was held that fair trial is the fundamental right of the accused and in the absence of a fair investigation, there can never be fair trial.
- It was further contended by the Counsel for the accused that the intention behind section 33(5) of the POCSO Act was to prevent the harassment of the child victim, but the same should not be used as a shield by the prosecution to deprive the accused of his right to proper cross-examination and in consequence, the right of a fair trial.
- The revision petition was opposed by the Counsel for the State, it was submitted that the recalling of the victim would stand in clear violation of Section 33(5) of the POCSO Act which mandates that the child victim should not be called to repeatedly testify before the Court.
- The Hon’ble HC, at the outset, relied upon the decision of the Hon’ble Apex Court in Godrej Pacific Tech. Ltd. vs Computer Joint India Ltd. wherein the Court held that the power granted to the Court is to be divided into two parts, the first part empowers the Court to examine any person or recall and re-examine any person who has already been so examined, while the second part states that the Court has to do the aforesaid if it appears to the Court that the same is essential for the just decision of the case. The first part uses the word ‘may’ while the second part uses the word ‘shall’, meaning thereby that the Court will have to mandatorily use its power under section 311 if it appears necessary for the just decision of the case.
- The Court also relied upon the case of Mohd. Gulzar vs The State (GNCTD), 2018 wherein it was observed that the right of cross-examination of the accused being a valuable right, the same has to be balanced with the right of victim under section 33(5) of POCSO Act. Thus, the accused was afforded another opportunity to cross-examine the victim.
- The Court also placed reliance on B.C. Deva @ Davya vs. State of Karnataka where the SC had stressed upon the right of the accused to re-examine the victim to ensure fair trial. The Court observed that the right of examination of prosecution witnesses is an essential right of the accused and disallowing the same would result in causing him serious prejudice.
- The Hon’ble HC, thus, directed the Additional District and Sessions Judge to recall the two prosecution witnesses for the purpose of cross-examination.
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