Karnataka High Court: M Nagaprasanna J. allowed the petition and quashed the impugned order and remitted the matter back to Sessions Judge for cross-examination.
The instant petition was filed on a complaint being registered for offences punishable under Section 376(n) read with Section 34 of Penal Code, 1860 i.e. IPC, Sections 4, 6, 8, 12 and 17 of the POCSO Act and Sections 9, 10 and 11 of the Prohibition of Child Marriage Act. The State is before the Court in the subject petition challenging the order dated 16-09-2019 passed by the Principal District and Sessions Judge, Chamarajnagar whereby the 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 (‘POCSO Act’ for short) and Sections 9, 10 and 11 of the Prohibition of Child Marriage Act, 2006.
The Court relied on judgment Doula v. State, Criminal Appeal No.100260/2016 decided on 22-07-2020 observed that 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 POCSO Act itself on her turning hostile which would also cover the situation under sub-section (2) of Section 33 of the POCSO Act.
The Court thus observed that from a perusal of the impugned order is that it runs counter to Section 33 of the POCSO Act, judgments rendered by various courts 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 POCSO 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 Sessions Judge shall take such care and caution in transmitting the questions to the victim to be in strict consonance.
The Court held “Criminal Petition is allowed and the order dated 16.09.2019 passed by the Principal District and Sessions Judge, Chamarajnagar in Special Case No.184 of 2019, stands quashed.”
[State v. Somanna, 2022 SCC OnLine Kar 370, decided on 03-03-2022]
For petitioners: Mr. Shankar HS