The Calcutta High Court has allowed recross-examination of witnesses in a POCSO case, emphasizing that while victims must be protected from repeated appearances, the accused’s right to a fair defence cannot be overlooked. The court said each case must be judged on its own facts and merits.
In a significant decision balancing victim protection with the right of the accused to a fair trial, the Calcutta High Court’s Port Blair circuit bench has allowed recross-examination of prosecution witnesses in a Protection of Children from Sexual Offences (POCSO) case, setting aside a special court’s earlier order refusing the prayer.
Justice Apurba Sinha Ray, in an order dated February 5, held that while the special court judge was right in observing that victims and vulnerable witnesses in POCSO cases should not be summoned repeatedly on flimsy grounds, every case must still be evaluated on its own merits.
“There are no two opinions that recall of victim/witnesses in POCSO matters should be avoided unless absolutely essential,” the judge said, affirming the legal position, but added that “each case has to be judged on its own merits.”
The petitioner was convicted in 2022 by a special POCSO court in North and Middle Andaman for offences under Sections 6 and 12 of the POCSO Act, along with provisions of the Indian Penal Code and the Information Technology Act, relating to the sexual abuse of a minor girl. He was sentenced to 10 years’ rigorous imprisonment.
However, a division bench of the High Court set aside the conviction on April 9, 2024, and remanded the matter back to the trial court with directions to re-examine the accused and pass a fresh judgment.
After his re-examination, the accused filed an application seeking recross-examination of seven key prosecution witnesses. He argued that his previous counsel had failed to effectively cross-examine them and that denying this opportunity would impair his right to a proper defence.
The trial judge dismissed the plea citing Supreme Court precedents that discourage recalling victims or witnesses in POCSO matters unless absolutely necessary.
Before the High Court, the petitioner’s lawyer submitted that the inadequacies in the prior cross-examinations were prejudicial and not his fault, urging that the accused should not suffer for the failures of earlier legal representation.
The state opposed the application, alleging it was an attempt to delay the proceedings, especially since the accused was already out on bail.
Justice Ray, however, noted that the accused’s right to defend himself with proper legal assistance is fundamental and cannot be ignored merely due to procedural history. The court observed:
“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.”
Finding merit in the accused’s plea, the High Court directed the special POCSO judge to allow recross-examination of the witnesses, stating it was “absolutely essential” for ensuring a fair trial.
The ruling marks an important reaffirmation that while special safeguards exist for victims under POCSO, they do not nullify the fundamental principles of criminal justice, including the accused’s right to an effective defence.
