Dismissed

Parashuram v. the State of Karnataka

Karnataka HC9 Dec 2024CRL.P/201439/2024

Case brief

AI extract

What is this about?

Criminal petition seeking quashing of the lower court's order rejecting the accused's application to recall the minor victim for further cross-examination. The High Court held the petition as dismissed, finding no illegality in the lower court's order given that the witness was already cross-examined at length and repeated summoning of a minor violates the POCSO Act's intent.

What did the court decide?

Criminal petition dismissed; impugned order of the learned Sessions Judge allowing the prosecution stand.

Parashuram Vs the State of Karnataka — Child Sexual Offences (POCSO) | Karnataka HC (2024)

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NC: 2024:KHC-K:9464 CRL.P No. 201439 of 2024

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IN THE HIGH COURT OF KARNATAKA

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KALABURAGI BENCH

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DATED THIS THE 9^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

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CRIMINAL PETITION NO.201439 OF 2024

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(482(Cr.PC)/528(BNSS))

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BETWEEN:

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PARASHURAM S/O YANKOBA @ YANKAPPA DORI / KASHIRAJ, AGE: 24 YEARS, OCC: AUTO DRIVER, R/O KELLUR VILLAGE, TQ. JEWARGI DIST. KALABURAGI-585310.

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…PETITIONER

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(BY SRI. S. B. SANGOLAGI, ADVOCATE)

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AND:

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Digitally signed by SWETA KULKARNI Location: High Court Of Karnataka

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THE STATE OF KARNATAKA THROUGH JEWARGI POLICE STATION, REPRESENTED BY ADDL. H.C.G.P HIGH COURT OF KARNATAKA, KALABURAGI BENCH-585107.

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…RESPONDENT

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(BY SMT. ANITA M. REDDY, HCGP)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C.(OLD), UNDER SECTION 528 OF BNSS (NEW) PRAYING TO ALLOW THE PETITION AND SET ASIDE THE ORDER OF LEARNED ADDL. DISTRICT AND SESSIONS COURT FTSC-I SPECIAL COURT FOR POCSO AT KALABURAGI PASSED ON 17-09-2024 IN SPL.CASE POCSO NO. 21/2023, FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 363, 376(2) (N),

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NC: 2024:KHC-K:9464 CRL.P No. 201439 of 2024

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354(D), 506, 509, 342 OF IPC AND SEC. 4, 6, 12 OF POCSO ACT 2012, IN THE INTEREST OF JUSTICE.

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THIS PETITION, COMING ON FOR ORDERS THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

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ORAL ORDER

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The rejection of application filed by the

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petitioner/accused for recalling PW.1 for further crossexamination is assailed in this petition preferred under Section 528 of Bharatiya Nagarik Suraksha Sanhita (for short ‘BNSS, 2023’).

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Heard the learned counsel for the petitioner, learned High Court Government Pleader for the State and perused the records.

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Petitioner is the sole accused facing trial before

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the Court of learned Additional District and Sessions Court FTSC-I, Special Court for POCSO Cases at Kalaburagi in Spl.Case POCSO No.21/2023, for the offences punishable under Sections 363, 376(2)(n), 354(d), 506, 509, 342 of IPC and Sections 4, 6 and 12 of POCSO Act, 2012.

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3 - NC: 2024:KHC-K:9464 CRL.P No. 201439 of 2024

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An application under Section 348 of BNSS, 2023

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was filed by the petitioner for recall of PW.1 i.e., minor victim. The said application was rejected by the learned Sessions Judge vide order dated 17.09.2024.

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Learned counsel for the petitioner would

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contend that the victim girl had furnished history before the Doctor that she willingly accompanied the accused and while cross-examining her, no question was put to the victim regarding the same and therefore, submitted that an opportunity has to be given to the petitioner to crossexamine PW.1. He contended that the rejection of application seeking to recall PW.1 for further crossexamination has resulted in curtailing the fundamental right of the accused to cross-examine a witness and if the application is allowed, no prejudice will be caused to the prosecution.

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The prayer has been opposed by the learned High Court Government Pleader contending that sufficient opportunity was given to the defence to cross-examine the

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NC: 2024:KHC-K:9464 CRL.P No. 201439 of 2024

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victim and learned Sessions Judge after giving cogent reasons, has rightly rejected the application. It is contended that in a case of this nature, a minor victim cannot be summoned to the Court repeatedly, in view of Section 33 (5) of the POCSO Act, 2012.

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I have perused of the impugned order passed by the learned Sessions Judge. It is seen that the victim was examined as PW.1 on 25.05.2023. The matter was deferred for cross-examination, however, learned counsel appearing for accused was absent and therefore, initially her cross-examination was taken as nill. Subsequently, the defence filed an application under Section 311 of Cr.P.C., which was allowed with a cost of Rs.2,000/- and PW.1 was recalled for cross-examination and the matter was posted on 07.08.2023. Since PW.1 did not turn up and the summons was unserved, the case was adjourned and finally, on 26.09.2023, PW.1 appeared before the Court and she was fully cross-examined by the defence. Further, Ex.D.1 was also marked through her evidence.

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5 - NC: 2024:KHC-K:9464 CRL.P No. 201439 of 2024

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Learned Sessions Judge in the impugned order

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has observed that PW.1/victim was cross-examined at length from all angle running to 7 pages and the grounds urged by the accused that the previous counsel has not cross-examined PW.1 properly and now she has attained majority etc., was not a good ground to recall her for further cross-examination.

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There is no illegality committed by the learned Sessions Judge in rejecting the application filed by the defence under Section 348 of BNSS, 2023. It is not the case of defence that he was not given an opportunity to cross-examine PW.1. The material on record reveals that PW.1 was not only cross-examined but, she was crossexamined at length by the defence. As rightly contended by the learned High Court Government Pleader, in a case of this nature, a minor victim of sexual assault cannot be summoned repeatedly to testify in the Court. It is held by the Hon’ble Apex Court in Madhab Chandra Pradhan and others vs. State of Odisha,

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6 - NC: 2024:KHC-K:9464 CRL.P No. 201439 of 2024

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[SLP(Crl.)No.10082/2024] disposed on 05.08.2024 that, when the victim has been examined and then crossexamined at length, mechanically allowing an application for recall of the victim, especially in trial of offences under the POCSO Act, would defeat the very purpose of the statute. No grounds are made out to interfere with the impugned order.

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Petition is accordingly dismissed.

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Sd/(MOHAMMAD NAWAZ) JUDGE

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AMM List No.: 1 Sl No.: 8 CT:SI

Parashuram v. the State of Karnataka

Case brief

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Parashuram v. the State of Karnataka

Case brief

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