Read Order: Balkarv. State of Haryana

Monika Rahar

Chandigarh, February 25, 2022: In a POCSO matter, the Punjab and Haryana High Court has held that as per Section 33(5) of the POCSO Act, a victim under this Act being a minor cannot be called time and again to testify. 

The Bench of Justice Rajesh Bhardwaj was approached by way the present revision petition against the impugned order whereby the application filed under Section 311 Cr.P.C by the victim-complainant was dismissed by the Trial Court.

As per facts of the case, the petitioner-complainant (father of the victim) lodged the FIR in question. The investigation commenced and after completion of the same the charge-sheet was presented. Thereafter, the Trial Court was seized of the matter. During the trial the victim was examined, however, thereafter an application under Section 311 Cr.P.C was filed on behalf of the victim for granting her permission for her re-examination. 

The petitioner’s counsel vehemently contended that though the victim was examined, however, due to her ill health she could not depose the entire facts and hence it necessitated her to file the application under Section 311 Cr.P.C for her re-examination. The Counsel submitted that the power under Section 311 Cr.P.C is wide enough and has been incorporated to prevent the miscarriage of justice. He also contended that it was expedient in the interest of justice, hence the Trial Court should have allowed the application allowing her re-examination. 

After having heard the arguments advanced by the petitioner’s counsel, the Court was of the view that the victim while stepping into the witness box duly supported the case of the prosecution and was cross-examined at length. Regarding the petitioner’s argument that it was because of her ill health that she could not narrate the entire facts, the Court observed that nothing on record was produced in support of this arguments. 

Further, the Court noted that as per the record, all the prosecution witnesses were already examined by the Trial Court. Even otherwise the victim being a minor cannot be called time and again as per Section 33(5) of the POCSO Act, 2012, the Court asserted. 

So far as Trial Court’s observations to the effect the application was filed deliberately due to some kind of compromise between the parties is concerned, the Court was of the view that it could not be ignored. 

Further, the Court added that there is no gainsaying that the court is granted ample power under Section 311 Cr.P.C to prevent the injustice, however, in view of the law settled, it is apparent that the Supreme Court laid down that the power under Section 311 Cr.P.C should be invoked only to meet the ends of justice. The Court also added that the power should be exercised for strong and valid reasons and it should be exercised with great caution and circumspection. Reliance in this regard was placed on Top Court’s decision in Swapan Kumar Chatterjee Vs. Central Bureau of Investigation ,2019(14) SCC 328

In all its humility, the Court said that it had no dispute with the judicial precedents relied upon by the petitioner’s counsel however, every case has its own facts and circumstances. And, so far as the present case goes, the Court opined that it pertained to a victim under the POCSO Act. The stage of the trial and the relevant time at which the application under Section 311 Cr.P.C was filed, are the important factors to be taken into consideration before invoking the power under Section 311 Cr.P.C., the Court held. 

The Court also observed that in the facts and circumstances of the present case, the judicial precedents relied upon by the counsel for petitioner were distinguishable. The Court did not find any infirmity in the conclusion arrived at by the Trial Court. 

Thus, the petition was dismissed. 

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