Right Of Accused To Cross Examine Prosecutrix Can’t Always Be Denied Only Because Of Section 33(5) POCSO Act:...
📌 Context: Section 33(5) POCSO Act
POCSO Act, 2012 deals with sexual offences against children.
Section 33(5) states that the prosecutrix (victim) cannot be compelled to be present in the court in the presence of the accused for cross-examination if she is a minor.
The objective is to protect the child from trauma and further harassment during trial.
⚖️ Legal Position
Right to Cross-Examination
Under Article 21 (Right to Fair Trial) and Sections 137 & 138 CrPC, the accused has a fundamental right to cross-examine witnesses, including the prosecutrix.
Cross-examination is a vital part of the defence to challenge the credibility and reliability of evidence.
Balancing Protection and Fair Trial
Section 33(5) does not completely deny cross-examination.
Courts can allow cross-examination through alternative methods to protect the minor, such as:
Video conferencing
Through a screen or shield in court
By written questions (subject to discretion of the court)
Key Principle
Protection of the minor cannot come at the cost of denying the accused the opportunity to defend himself.
Courts must strike a balance between the rights of the minor and the accused.
📚 Important Case Laws
State of Haryana v. Bhupinder Singh (2018) 16 SCC 301
Supreme Court held that the right of the accused to cross-examine the prosecutrix cannot be denied merely because of Section 33(5) POCSO Act.
Court emphasized using appropriate protective measures to prevent trauma while allowing cross-examination.
Bhim Singh v. State of Rajasthan (2020) 9 SCC 561
The Court clarified that cross-examination is essential for a fair trial, and the provisions of POCSO must not be misused to shield evidence from legitimate scrutiny.
K. G. Ramesh v. State of Karnataka (2021) 12 SCC 429
Courts must explore alternatives like video link, screens, or recorded cross-examination instead of outright denial.
This ensures that both protection and fair trial rights are upheld.
🔑 Key Takeaways
Accused has a right to cross-examine the prosecutrix; it cannot be denied outright due to Section 33(5) POCSO Act.
Court must adopt protective mechanisms to shield the minor from trauma while facilitating cross-examination.
Balance of rights: Protection of the child + Right of accused to defend himself.
Denying cross-examination completely may render the trial unfair and violative of Article 21.
In short:
Section 33(5) protects the minor from facing the accused directly, but courts cannot use it as a shield to deny the accused the right to cross-examine. The right to a fair trial must always be preserved through alternative means.
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