Saturday, 24 November 2018

Whether court can direct accused to submit questionnaire in POCSO case in advance?

 It is clear that the purport of the Act is to insulate the child against an offensive or aggressive cross examination. Evidently, the court has also a duty to ensure that the accused is entitled for a fair trial by putting all relevant questions to the witnesses. Though the limited scope of section 33(2) is to insulate the victim against aggressive and offence cross examination, the court has to ensure that the relevant questions which may be embarrassing to the witness are properly and decently conveyed to the witness. In case of such questioning, the court has a solemn duty to ensure that, the question is appropriately moulded, without leaving out the spirit and soul of the question suggested.

8. Essentially, cross examination is considered to be the most difficult branch of multifarious duties of an advocate. It is a skill that requires greatest ingenuity, a habit of logical thought, clearness of perception, infinite patience and self control, power to read men's minds intuitively, to judge the witnesses by their face and the ability to cross examine with force and precision. A Lawyer has to deal with a prodigious variety of witnesses testifying under different circumstances. A skilled lawyer should know the precise moment at which a particular question is to be put and the questions which are not to be put. In a regular cross examination, questions are often to be moulded and asked on the spur of moment, depending on the answers given by the witness. Considering it, submitting the questionnaire in advance to the court, that too, with copy to the prosecutor will defeat the very purpose of cross examination and cross examination tends to become an empty formality. If the questions proposed to be put to the witness are supplied in advance, there is no purpose in conducting cross examination.

9. A perusal of the statutory provision also clearly shows that, it does not, either explicitly or by necessary implication, empower the court to demand a questionnaire from either side in advance before the examination of the witness. Section provides that "while recording" the examination-in-chief, cross examination or re-examination, the questions shall be communicated to the court, which in turn, shall be put to the child. It clearly shows that, statute does not authorise the court to require any party to supply questionnaire in advance. It negates the right of the accused for a fair trial.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl. M.C. No. 6092 of 2018

Decided On: 31.10.2018

 Unnikrishnan R. Vs. Sub Inspector of Police, Kurathikadu Police Station 
Hon'ble Judges/Coram:
Sunil Thomas, J.




1. The petitioner is the first accused facing trial in Crime No. 5/2016 of Kurathikadu police station for offences punishable under sections 3(a) read with sections 4 & 5(1)(m)(n) and section 6 of POCSO Act, Sections 375 and 506(1) of IPC and section 23 of Juvenile Justice Act.

2. The petitioner had approached this court earlier by filing Tr.P. (Crl) No. 34/2018, raising an apprehension that he will not get fair trial due to the alleged prejudicial approach of the learned Judge. Few grievances regarding the procedure adopted in the course of trial were also raised. After perusing a report obtained from the above court, this court had felt that since trial had already commenced, it would be appropriate not to interfere in the course of trial. However, the need for ensuring a fair trial was highlighted by this court, while disposing of Transfer Petition (Crl.) No. 34 of 2018, by order dated 13/4/2018. The accused and his lawyer were directed to maintain the decorum of court and to ensure that the trial progresses in a fair and peaceful manner. The court was also directed to ensure a free and fair trial to the petitioner and reminded that justice should not only be done, but seen to be done.

3. The first accused has approached this court again, raising further grievances regarding the procedure adopted. Though some of the earlier allegations were reiterated, it was alleged that, trial was not progressing in the proper manner. It was contended that, after the chief examination of the victim was over, the accused were directed to furnish the questionnaire of the cross examination, which was objected to. Still the court insisted and a written questionnaire was submitted in advance to the court. Copy was also furnished to the prosecutor. The case was adjourned after 10 days. According to the petitioner, this procedure was in total disregard to the principles of cross examination and will enable the prosecutor to prepare the witness to answer the questions.

4. A report was called from the trial court. All the earlier complaints about the conduct of the accused were reiterated by the court in detail. However, the report confirms that the court below had received questionnaire from the defence counsel on the date of examination in Chief of the victim. This was justified by the court claiming that it was in accordance with section 33(2) of the POCSO Act. The judge proceeded to hold that, the questions to be put to the child during the chief examination or cross examination are to be furnished to the court by the Special Public Prosecutor and the defence counsel, as the case may be, in writing. It was further reported that, such a procedure was being followed with a view to avoid future complaints that the question actually intended to be put by them was a different one and the court put it in a different manner to the child witness against the interest of the accused.

5. Since the other allegations and counter allegations were answered in the Transfer Petition No. 34/2018, I am not inclined to go into those allegations now. However, in the light of the procedure adopted by the court below regarding the receipt of questionnaire in advance, purported to be under section 33(2) of POCSO Act, that matter needs a careful examination.

6. Section 33(2) of the Act provides that, the Special Public Prosecutor, or as the case may be, the counsel appearing for the accused shall, while recording the examination-in-chief, cross-examination or re-examination of the child, communicate the questions to be put to the child to the Special Court, which shall in turn, put those questions to the child. (emphasis supplied). This has to be read along with various precautions provided under the Act to ensure that the child is not exposed to offensive cross-examination. Under section 33(6) of the Act, the Special Court is imposed with an obligation to ensure that aggressive questioning or character assassination of the child is not permitted and dignity of the child is maintained at all times during the trial. Essentially, section 33(2) is intended to ensure that the victim child is not intimidated, threatened or coerced in the course of cross examination by the defence counsel. In the nature of the allegation involved, some of the questions may tend to be embarrassing, offending, often emotional or sensitive. The victim, because of the tender age and having been subjected to an alleged sexual assault, is a vulnerable witness. The statute has taken special care to ensure that the victim is not affronted with offensive, aggressive or embarrassing questions. Statute expects the court in such situations to be proactive, to act as a buffer against the brunt of the cross examination and to elicit answers from the witness, without compromising on the right of accused for an effective cross examination.

7. It is clear that the purport of the Act is to insulate the child against an offensive or aggressive cross examination. Evidently, the court has also a duty to ensure that the accused is entitled for a fair trial by putting all relevant questions to the witnesses. Though the limited scope of section 33(2) is to insulate the victim against aggressive and offence cross examination, the court has to ensure that the relevant questions which may be embarrassing to the witness are properly and decently conveyed to the witness. In case of such questioning, the court has a solemn duty to ensure that, the question is appropriately moulded, without leaving out the spirit and soul of the question suggested.

8. Essentially, cross examination is considered to be the most difficult branch of multifarious duties of an advocate. It is a skill that requires greatest ingenuity, a habit of logical thought, clearness of perception, infinite patience and self control, power to read men's minds intuitively, to judge the witnesses by their face and the ability to cross examine with force and precision. A Lawyer has to deal with a prodigious variety of witnesses testifying under different circumstances. A skilled lawyer should know the precise moment at which a particular question is to be put and the questions which are not to be put. In a regular cross examination, questions are often to be moulded and asked on the spur of moment, depending on the answers given by the witness. Considering it, submitting the questionnaire in advance to the court, that too, with copy to the prosecutor will defeat the very purpose of cross examination and cross examination tends to become an empty formality. If the questions proposed to be put to the witness are supplied in advance, there is no purpose in conducting cross examination.

9. A perusal of the statutory provision also clearly shows that, it does not, either explicitly or by necessary implication, empower the court to demand a questionnaire from either side in advance before the examination of the witness. Section provides that "while recording" the examination-in-chief, cross examination or re-examination, the questions shall be communicated to the court, which in turn, shall be put to the child. It clearly shows that, statute does not authorise the court to require any party to supply questionnaire in advance. It negates the right of the accused for a fair trial.

10. In the light of the above conclusion, the procedure adopted by the learned Session Judge in receiving the questionnaire to be put to the witness, in advance is improper and cannot be accepted.

11. Having regard to the above facts, I am inclined to direct that the court shall continue the trial without insisting the counsel for the parties to follow the questionnaire. The petitioner herein will be free to put relevant questions in the course of examination as and when arises and the court shall proceed with the trial in accordance with the provisions under section 33(2) of the Act as clarified above.

With the above observations, Crl. M.C. is disposed of directing the court below to permit the counsel for the accused to continue the cross examination in accordance with law.




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