Repeated cross-examination of child POCSO victim risks retraumatising her, Karnataka High Court rules while quashing second recall order

The petitioner, mother of the child victim, challenged the Special Court’s order allowing the accused’s second application under Section 311 Cr.P.C. to recall the victim (P.W.2) for further cross-examination in a prosecution under Sections 376 and 506 IPC and Sections 4, 5 and 6 of the POCSO Act

After the accused’s cross-examination had initially been treated as nil, the Court allowed a first recall application on 16 June 2023.

The victim was thereafter cross-examined on several dates, and her cross-examination was recorded as concluded on 30 September 2023

On 4 March 2024, the accused sought a second recall, citing omissions and admissions elicited from the victim’s mother and videos and voice messages said to require confrontation with the victim.

The Special Court allowed the application on 13 March 2024, prompting this petition

The High Court stayed the order pending determination of the petition

1. Whether the Special Court’s order allowing a second recall of the child victim under Section 311 Cr.P.C. was sustainable in light of Section 33(5) of the POCSO Act

2. Whether the reasons advanced for further cross-examination established that recalling the victim was essential to the just decision of the case

Section 311 Cr.P.C. empowers a court to recall and re-examine a witness where the evidence is essential to the just decision of the case; the power must be exercised judicially, for strong and valid reasons, and with caution and circumspection

Section 33(5) of the POCSO Act requires the Special Court to ensure that a child is not called repeatedly to testify. It is not an absolute bar to recall, but the discretion under Section 311 must be exercised in harmony with the POCSO Act’s protective purpose, including preventing repeated exposure and re-traumatisation

Section 42A of the POCSO Act gives the Act overriding effect in cases of inconsistency

The Court applied *Madhab Chandra Pradhan v. State of Odisha*, which requires a fact-specific assessment and rejects mechanical recall where the child has already been cross-examined at length

and *State (NCT of Delhi) v. Shiv Kumar Yadav* and *Swapan Kumar Chatterjee v. CBI*, which hold that recall is not a matter of course and that successive applications, unexplained delay and hardship to witnesses are relevant considerations

The victim had already been recalled once and cross-examined over several dates, with the cross-examination concluded on 30 September 2023; the second application followed about five months later

The proposed further questioning concerned matters arising from the mother’s cross-examination and videos and voice messages, but the record did not establish why this additional examination was essential to the just decision of the case.

In these circumstances, allowing a second recall would expose the child—who was eight at the time of the alleged incident—to further questioning about the same events and risk re-traumatisation

The Court held that this was materially different from a case in which the victim had not been cross-examined and that the impugned order would undermine the protection mandated by Section 33(5)

It allowed the writ petition and quashed the Special Court’s order dated 13 March 2024 permitting the second recall of P.W.2 under Section 311 Cr.P.C.

The pending interlocutory application was also disposed of