Indian Kanoon - Search engine for Indian Law

The State is before this Court in the subject petition calling in question order dated 16-09-2019 passed by the Principal District and Sessions Judge, Chamarajnagar in Special Case No.184 of 2019, whereby the learned Sessions Judge declined to permit the State to cross-examine the victim on her turning hostile in a case arising out of the provisions of the Protection of Children from Sexual Offences Act, 2012 ('POSCO Act' for short) and Sections 9, 10 and 11 of the Prohibition of Child Marriage Act, 2006.

4. The only issue that falls for my consideration is whether the victim under the POSCO Act can be permitted to be cross-examined once she turns hostile. Before considering the issue, I deem it appropriate to notice the provisions of the POSCO Act which deals with the procedure and powers of the Special Court. Section 33 of the POSCO Act reads as follows:

"33. Procedure and powers of Special Court.- (1) A Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence, or upon a police report of such facts.

In terms of sub-section (2) of Section 33 of the POCSO Act, the Special Public Prosecutor or as the case would be, the counsel appearing for the accused shall, while recording examination-in-chief, cross-examination or re-examination of the child communicates the questions to be put to the child to the Special Court which shall in turn put those questions to the child. Therefore, the victim is permitted to be cross-examined under the POSCO Act itself on her turning hostile which would also cover the situation under sub-section (2) of Section 33 of the POCSO Act. The Apex Court in the case of NIPUN SAXENA v. UNION OF INDIA1 while interpreting Section 33 of the POSCO Act has held as follows:

What would unmistakably emerge from a perusal of the impugned order is that it runs counter to Section 33 of the POSCO Act, judgments rendered by the Apex Court and that of this Court and resultantly becomes unsustainable. Therefore, the State is to be permitted to cross-examine the victim. But, such cross-examination can be only in terms of Section 33 of the POSCO Act which mandates that while cross-examination questions shall be put to the Court and the Court in turn to put the same questions to the victim. The learned Sessions Judge shall take such care and caution in transmitting the questions to the victim to be in strict consonance with the provisions of the POSCO Act.