By Shazia Siddiqui

In a significant legal development, the Fast Track Special Court for POCSO Act Cases in Adoor recently grappled with a complex petition filed under Section 482 of the Code of Criminal Procedure, 1973. The crux of the matter revolved around a request to annul an order (Annexure A6) pertaining to Crl.M.P. No.66/2024 in S.C. No.63/2023. At the heart of the petitioner’s argument lay a contention that vital questions had been inadvertently overlooked during the cross-examination of PW1, prompting a plea to recall her for further interrogation. This legal maneuvering drew its strength from a precedent set in the case of Vineeth v. State of Kerala, which suggested that the statutory restrictions under Section 33(5) of the POCSO Act might not be insurmountable obstacles to the recall of child witnesses if such a measure was deemed crucial for a just resolution.

Opposing this motion tooth and nail, the prosecution countered that the underlying motive behind the recall petition was to patch up evidentiary lacunae post-trial, a maneuver it deemed legally impermissible. The court, cognizant of the legal landscape delineated by Vineeth’s precedent, acknowledged the possibility of recalling a child witness under specific conditions but cautioned against its misuse to remedy inadequacies in the evidential tapestry.

Central to the court’s deliberation was Section 33(5) of the POCSO Act, which seeks to shield child witnesses from the trauma of repetitive courtroom exposure. However, the court clarified that while this provision was intended to prevent undue stress on child witnesses, it should not be misconstrued as an absolute prohibition against their recall. Rather, the court underscored that the recall of a child witness should be a measure of last resort, invoked only when indispensable for the cause of justice and not as a panacea for procedural lapses.

A meticulous scrutiny of the questions slated for PW1’s prospective recall led the court to a damning conclusion: the petitioner’s intent was not to pursue justice but to paper over the cracks in the defense’s evidentiary edifice, a stratagem the court deemed legally untenable. Consequently, the court upheld the previous order (Annexure A6) dated 17.04.2024, rebuffing the petitioner’s bid to recall PW1.

Thus, the court’s ruling underscored the delicate balance between the imperatives of justice and the imperative to shield vulnerable witnesses from undue trauma. By reaffirming the constraints imposed by Section 33(5) of the POCSO Act, the court sent a resounding message: the pursuit of justice must be tempered with procedural rectitude, and the recall of witnesses should be driven by a genuine quest for truth, not a bid to shore up a flimsy defense. This ruling stands as a testament to the judiciary’s unwavering commitment to upholding the sanctity of legal processes, even in the face of formidable legal challenges.

Case Title: Jerin Joy v. State of Kerala

Citation: CRL.MC NO. 3840 OF 2024

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