POCSO survivor can be cross examined by State if she turns hostile: Karnataka High Court

The Karnataka High Court has held that a survivor in case under the Protection of Children from Sexual Offences Act (POCSO Act) may be cross-examined by the State if she turns hostile [State of Karnataka v. Somanna and Ors]. .Single-judge Justice M Nagaprasanna, however, said that such cross-examination should be in accordance with the conditions laid down under the POCSO Act."The State is permitted to cross examine the victim. But, such cross examination can only be in terms of Section 33 of the POCSO Act which mandates that while cross-examination questions shall be put the Court and the Court in turn to put the same questions to the victim," the Court said..In this case, the State had approached the court challenging an order passed by the Sessions Judge, who declined to give permission to the State to cross-examine the victim upon her turning hostile in a case under the POCSO Act and the Prohibition of Child Marriage Act. .The allegation against the accused persons was that even though they knew the victim was a minor, they got her married to the first accused who was also aware that she was a child. Further, the first accused committed sexual assault on her many times. During the course of the trial, the victim turned hostile.When she turned hostile, the prosecution sought permission to cross-examine her, which was declined by the trial court. .The State pleaded that cross examination of the victim is a right, and merely because the case is under the POCSO act, the right of cross examination cannot be taken away, as the law allows cross examination..The Court noted that the only issue before it was whether a victim under the POCSO Act can be cross examined once she turns hostile. The Court considered Section 33 (procedure and powers of special court) of the POCSO Act, noting that Section 33(2) allows the Special Public Prosecutor, or the counsel appearing for the accused to examine, cross examine, or re-examine the child. The victim is therefore permitted to be cross examined under the POCSO Act if she turns hostile, the Court noted. .Referring to the case of Nipun Saxena v. Union Of India the Court observed that the Supreme Court had delineated the importance of having a court room and a child friendly atmosphere. .The Court, therefore, said that the order of the POCSO court was against Section 33 of the POCSO Act.The State is permitted to cross examine the victim, under the conditions that the questions shall be put to the court, and the court in turn would put the questions to the victim. .The High Court, thus, allowed the criminal petition and directed the Sessions Judge to permit cross examination of the victim in accordance with Section 33 of the POCSO Act. .High Court Government Pleader Shankar HS appeared for the State. .[Read Order]