Whether the court can permit accused to recall prosecutrix/ victim in an offence Under POCSO Act?

Of course, as per Section 33 of the POCSO Act, the  prosecutrix/victim and shall not be called frequently for cross-examination by the Court. However, that does not mean there shall not be any opportunity given to the accused for the

purpose of prosecution cross-examination of the prosecution

witness. {Para 6}

7. Of course, there was a defect on the part of the

learned counsel for the accused for not cross-examined the

prosecution witness and he sought time. However, the Court at

first instance, though rejected ought to have considered

sympathetically and allowed the applicant to cross-examine

P.W.1.

8. This Court in a catena of decisions held that fair

trial is a fundamental right which is guaranteed under Article 21

of the Constitution of India. Of course, the trial is to be

concluded within one year under the POCSO Act. The delay

should be curtailed but that does not mean the Court should

allow cross-examination without giving a fair opportunity to the

accused to defend the case. The trial Court ought to have

given one more opportunity to the petitioner for

cross-examination of the witness. Accordingly, the order of the

trial Court deserves to be set aside.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

CRIMINAL PETITION NO. 3987 OF 2022

SRI. JAYANNA B @ JAYARAM Vs  STATE OF KARNATAKA 

BEFORE

 Coram: MR JUSTICE K.NATARAJAN

DATED:  13TH DAY OF FEBRUARY, 2023

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Whether Special Judge (POSCO) has jurisdiction under POSCO Act to award compensation to victim?

At this stage, it would be appropriate to notice sub-section
(8) of Section 33 of the POSCO Act which states as under:-
“33 (8) in appropriate cases, the Special Court, in
addition to punishment, direct payment of such
compensation to the child for any physical or
mental trauma caused to him or for immediate
rehabilitation for such child. ”
7. Sub-rule 1 to 6 of Rule 7 of the Rules of 2012 reads as
under:-
“7. Compensation.-(1) The Special Court may,
in appropriate cases, on its own or on an
application filed by or on behalf of the child, pass
an order for interim compensation to meet the
immediate needs of the child for relief or
rehabilitation at any stage after registration of the
First Information Report. Such interim
compensation paid to the child shall be adjusted
against the final compensation, if any.
(2) The Special Court may, on its own or on
an application filed by or on behalf of the
victim, recommend the award of compensation
where the accused is convicted, or where the case
ends in acquittal or discharge, or the accused
is not traced or identified, and in the opinion
of the Special Court the child has suffered loss or
injury as a result of that offence.
(3) Where the Special Court under sub-section
(8) of section 33 of the Act read with subsections
(2) and (3) of section 357A of the
Code of Criminal Procedure, makes a direction
for the award of compensation to the victim, it shall
take into account all relevant factors relating to the
loss or injury caused to the victim, including the
following:
(i) type of abuse, gravity of the offence
and the severity of the mental or physical
harm or injury suffered by the child;4
(ii) the expenditure incurred or likely to be
incurred on his medical treatment for
physical and/or mental health;
(iii) loss of educational opportunity as a
consequence of the offence, including
absence from school due to mental trauma,
bodily injury, medical treatment,
investigation and trial of the offence, or any
other reason;
(iv) loss of employment as a result of the
offence, including absence from place of
employment due to mental trauma, bodily
injury, medical treatment, investigation and
trial of the offence, or any other reason;
(v) the relationship of the child to the offender,
if any;
(vi) whether the abuse was a single isolated
incidence or whether the abuse took place over
a period of time;
(vii) whether the child became pregnant as a
result of the offence;
(viii) whether the child contracted a sexually
transmitted disease (STD) as a result of the
offence;
(ix) whether the child contracted human
immunodeficiency virus (HIV) as a result of the
offence;
(x) any disability suffered by the child as a
result of the offence;
(xi) financial condition of the child against
whom the offence has been committed so as to
determine his need for rehabilitation;
(xii) any other factor that the Special Court
may consider to be relevant.
(4) The compensation awarded by the Special
Court is to be paid by the State Government
from the Victims Compensation Fund or other
scheme or fund established by it for the
purposes of compensating and rehabilitating
victims under section 357A of the Code of Criminal
Procedure or any other laws for the time being in
force, or, where such fund or scheme does not
exist, by the State Government. 5
(5) The State Government shall pay the
compensation ordered by the Special Court within
30 days of receipt of such order.
(6) Nothing in these rules shall prevent a child or
his parent or guardian or any other person in whom
the child has trust and confidence from submitting
an application for seeking relief under any other
rules or scheme of the Central Government or State
Government.”
8. A conjoint reading of sub-section (8) of Section 33 of the
POSCO Act and Rule 7 of the Rules of 2012 would show that
the Special Judge (POSCO) is empowered to direct payment
of compensation to the victim/child for physical or mental
trauma which he or she has suffered for immediate
rehabilitation of such victim and that award of compensation
is in addition to the punishment that is ultimately imposed
upon the accused and the compensation awarded by the
Special Judge is to be paid by the State Government from the
Victims Compensation Fund or other scheme or fund
established under the provisions of Section 357-A of the
CrPC.
HIGH COURT OF CHHATTISGARH, BILASPUR
Cr.M.P.No.528 of 2017
State of Chhattisgarh, V Dilip Verma, 
Hon’ble Shri Justice Sanjay K. Agrawal
Dated: 26/04/2017

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