In a significant judgment reaffirming the protection of child victims in sexual offence cases, the Supreme Court of India dismissed a Special Leave Petition (Crl.) No. 10082 of 2024 filed by Madhab Chandra Pradhan and others against the State of Odisha. The petitioners challenged the orders of the High Court of Orissa and the Additional Sessions Judge-cum-Special Court under the Protection of Children from Sexual Offences (POCSO) Act, Nayagarh, which denied the recall of a minor victim for re-examination as a witness.
Background of the Case
The case originates from Special G.R. Case No. 100 of 2020, arising out of FIR No. 245 of 2020, where the petitioners are accused of offenses under Sections 363, 366, 376 (2), and 109 read with Section 34 of the Indian Penal Code, 1870, along with Sections 4, 6, and 17 of the POCSO Act, 2012, and Sections 9, 10, and 11 of the Prohibition of Child Marriage Act, 2006. The allegations against petitioner No. 2 include kidnapping a minor girl, forcibly marrying her, and sexually assaulting her over several days before her rescue by her parents and the police on November 18, 2020.
Legal Issues Involved
The petitioners filed an application under Section 311 of the Code of Criminal Procedure (Cr.P.C.) to recall the victim for re-examination, which was rejected by the Special Court on October 10, 2023. The Special Court cited Section 33(5) of the POCSO Act, which mandates that a child should not be repeatedly called to testify, in order to protect the child from further trauma.
The petitioners appealed to the High Court of Orissa, which upheld the Special Court’s decision, reiterating the legislative intent of the POCSO Act to safeguard the well-being of child victims at every stage of the trial.
Supreme Court’s Decision
The Supreme Court bench comprising Justice Sudhanshu Dhulia and Justice Ahsanuddin Amanullah upheld the High Court’s ruling, emphasizing that the statutory mandate under Section 33(5) of the POCSO Act is crucial to preventing re-traumatization of child victims. The Court observed that “the child should not be repeatedly called to testify in court,” reflecting the protective ethos of the POCSO Act aimed at minimizing the psychological impact on child victims of sexual offences.
The bench noted that the petitioners had already been granted two opportunities to cross-examine the victim, first on July 22, 2023, and again on August 14, 2023. The defense counsel’s subsequent request for adjournment was denied, and the petitioners sought to recall the victim through a Section 311 application, which the courts consistently rejected.
The Court referenced the principles laid down in the case of State (NCT of Delhi) v. Shiv Kumar Yadav (2016) 2 SCC 402, stressing that the plea to recall a witness must be bona fide and that such applications should not be granted routinely. The discretion to recall a witness must be exercised judiciously and not arbitrarily, with careful consideration of the case’s individual facts and circumstances.
Key Observations by the Court
Justice Sudhanshu Dhulia, delivering the judgment, underscored the importance of Section 33(5) of the POCSO Act, stating:
“A bare perusal of Section 33 (5) of the Act indicates that a duty is cast upon the Special Court to ensure that a child is not repeatedly called to give his/her testimony before the court. The legislative intent behind this provision is clear. It is to ensure that the child who has suffered a traumatic experience of sexual assault is not called time and again to testify about the same incident.”
The Supreme Court concluded that allowing the petitioners’ application to recall the victim would undermine the legislative intent of the POCSO Act and potentially subject the child to further trauma.
Representation and Case Details
The petitioners were represented by Senior Advocate Anukul Chandra Pradhan, along with Advocates Shakti Kanta Pattanaik, Aradhana Parmar, Rajni Bala Sharma, Dr. Monika Mishra, and Sparsh Kanta Nayak. The case was heard in the Supreme Court under the Criminal Appellate Jurisdiction, with the final judgment delivered on August 5, 2024.
