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Madras High CourtCRL OP/3475/2018dismissed

G.Vijayaraj, Aged 23 Years, v. The State Rep. By,

2018-06-07Honourable Mr Justice P. N. Prakash3 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 07.06.2018 C O R A M THE HONOURABLE Mr.JUSTICE P.N.PRAKASH Crl.O.P.No.3475 of 2018 and Crl.MP.No.1541 of 2018 G.Vijayaraj ... Petitioner/Accused Vs.

The State rep. by The Inspector of Police W-8, All Women Police Station Thirumangalam, Chennai-600 101.

... Respondent/Complainant Criminal Original Petition filed under Section 482 of Cr.P.C to set aside the order dated 22.01.2018 in MP.No.435 of 2018 in S.C.No.311 of 2016 on the file of the Sessions Judge, Mahila Court, Chennai and consequently, re-open and re-call the witnesses of P.W.2 Miss Sangeetha for the cross examination of the petitioner.

For Petitioner: Mr.A.M.Venkatakrishnan For Respondent: Mr.C.Raghavan Government Advocate (Crl.Side)

O R D E R

This Criminal Original Petition has been filed to set aside the order dated 22.01.2018 passed in MP.No.435 of 2018 in S.C.No.311 of 2016 on the file of the Sessions Judge, Mahila Court, Chennai and consequently, re-open and re-call Sangeetha (P.W.2) for the cross examination of the petitioner.

2. The petitioner is facing trial in S.C.No.311 of 2016 before the Sessions Judge, Mahila Court, Chennai for the offence under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short "the POCSO Act"). It is seen that the victim girl was examined-in-chief on 22.04.2017 and she was not cross-examined by the learned counsel for the petitioner herein for the reasons best known to him. Thereafter, the petitioner filed CMP.No.435 of 2018 in S.C.No.311 of 2016 under Section 311 Cr.P.C., to re-call the victim girl for cross-

examination, which has been partly allowed by the trial Court on 22.01.2018, challenging which, the petitioner/accused is before this Court.

3. Heard Mr.A.M.Venkatakrishnan, learned counsel for the petitioner/accused, who placed strong reliance on the order dated 13.09.2017 of the learned Single Judge of this Court made in Crl.OP.(MD).No.9401 of 2017 and Crl.MP(MD) No.6403 of 2017.

4. Per contra, the learned Government Advocate (Crl. Side) refuted the said contention.

5. This Court gave its anxious consideration to the rival submissions.

6. It is seen that the accused was defended by one counsel and thereafter, the accused engaged another counsel, who filed Crl.MP.No.435 of 2018 in S.C.No.311 of 2016 to re-call Chithra (P.W.1), Sangeetha-victim girl (P.W.2), Dr.Karthikeyan (P.W.7) and Ms.Praba - Sub-Inspector of Police (P.W.8). The trial Court has partly allowed Crl.MP.435 of 2018 on 22.01.2018, by permitting the accused to re-call P.W.1, P.W.7 and P.W.8. However, the trial Court has refused to re-call the victim girl (P.W.2).

7. At this juncture, it is apropos to extract Section 33(5) of the POCSO Act:

"The Special Court shall ensure that the child is not called repeatedly to testify in the Court."

8. The victim girl who was subjected to sexual abuse cannot be asked to come to the Court again and again and undergo the ordeal and explain how she was subjected to sexual assault. Change of counsel cannot be a reason for re-calling the witnesses. In fact, in Vinod Kumar vs. State of Punjab [2015(1) MLJ (Crl) 288], the Supreme Court has clearly held that the prosecution witnesses should be cross-examined on the day itself, when they are examined in chief.

9. Pursuant to the aforesaid judgment of the Supreme Court, the Registrar General of this Court has issued a circular to all the trial Courts in Tamil Nadu to follow the mandates of Vinod Kumar (supra). That apart, the Supreme Court in Rajaram Prasad Yadav Vs. State of Bihar (2013) 3 Scale 316 has given detailed guidelines for invoking the jurisdiction under Section 311 Cr.P.C. In this case, the trial Court has permitted the petitioner/accused to re-call P.W.1, P.W.7 and P.W.8, despite the order of the Supreme Court. The reasons given by the trial Court for not re-calling the victim girl-P.W.2 cannot be stated to be perverse warranting interference by this Court.

In the result, this petition is dismissed as being devoid of merits. Consequently, connected miscellaneous petition is closed.

s/d- Assistant Registrar(CS-V) True Copy Sub-Assistant Registra mk To 1.The Sessions Judge, Mahila Court, Chennai.

2.The Inspector of Police W-8, All Women Police Station Thirumangalam, Chennai-600 101.

3.The Public Prosecutor, Madras High Court, Chennai.

Crl.O.P.No.3475 of 2018 SV(CO) SP(25/06/2018)