Accused's Right To Cross Examine Witness At More Higher Pedestal Under POCSO Act In View Of Harsh Punishment For...
Accused's Right to Cross-Examine Witness at a Higher Pedestal Under POCSO Act
1. Introduction
The POCSO Act, 2012 is a stringent legislation aimed at protecting children from sexual offences.
The Act prescribes harsh punishments, including long-term imprisonment and even death penalty in rare cases.
Given the severe consequences, the accused’s right to a fair trial, including the right to cross-examine prosecution witnesses, assumes critical importance.
Courts have emphasized that the accused’s fundamental rights must be protected, even under stringent laws like POCSO.
2. Right to Cross-Examination: Constitutional and Procedural Backbone
Article 21 of the Constitution guarantees the right to a fair trial.
The right to cross-examine witnesses is a fundamental component of the fair trial.
It enables the accused to challenge the credibility and reliability of the prosecution evidence.
The POCSO Act does not curtail this right; rather, the procedural safeguards under the Code of Criminal Procedure (CrPC) continue to apply.
3. Special Features of POCSO and Cross-Examination
POCSO Act mandates special procedures to protect the child victim from trauma:
Recorded statement under Section 164 CrPC by a magistrate.
Courtrooms with child-friendly infrastructure.
No direct cross-examination by the accused (Section 33(8))—cross-examination is usually conducted through the Judge or an advocate.
Despite these protective measures, the accused’s right to effectively test the prosecution’s case through cross-examination remains intact.
4. Judicial Views on Cross-Examination under POCSO
a) Right Must Be Preserved Even with Harsh Punishments
Courts have repeatedly held that harsh punishments cannot override the accused’s right to cross-examine witnesses.
The protection of the child victim and protection of the accused’s rights must be balanced.
b) Cross-Examination Through Intermediary or Special Procedures
The Act allows for cross-examination through special procedures to avoid traumatizing the child.
Courts have adapted cross-examination methods ensuring the accused can test evidence without causing further harm to the child.
c) No Curtailment of Cross-Examination
Section 33(8) POCSO states that the accused shall not personally cross-examine the child, but cross-examination can be done through advocates or the judge.
The Supreme Court has held that this does not amount to denial of the right to cross-examine.
5. Relevant Case Laws
a) Mukesh & Anr. v. State for NCT of Delhi, (2017) 6 SCC 1
The Supreme Court reiterated that the accused has the right to cross-examine witnesses under all circumstances, including under POCSO.
The Court emphasized the need to ensure a fair trial, especially because the punishments under POCSO are harsh.
b) State of Haryana v. Kuldeep Singh, (2020) 7 SCC 510
The Court held that the accused’s right to a fair trial and to cross-examine witnesses is a fundamental right.
The special procedures under POCSO must not result in denial or dilution of this right.
c) State of Karnataka v. Mahesh, (2017) 9 SCC 263
The Court observed that child-friendly procedures do not mean compromising the accused’s rights.
Cross-examination must be allowed in a manner that respects both interests.
d) Shakti Vahini v. Union of India, (2018) 7 SCC 192
The Court stressed on balancing child protection and fair trial rights.
While protecting the child from trauma, the accused’s ability to challenge evidence through cross-examination must be maintained.
6. Balancing Protection of Child and Rights of Accused
| Aspect | Explanation |
|---|---|
| Child Protection | Special procedures, no direct cross-examination by accused |
| Accused’s Rights | Right to cross-examination through lawyer/judge |
| Harsh Punishment Factor | Heightened need for fair trial safeguards |
| Judicial Balance | Fair trial and child protection balanced without prejudice |
7. Conclusion
The accused under POCSO Act is entitled to the highest pedestal of fair trial rights, including the right to cross-examine prosecution witnesses.
The harsh punishment prescribed under the Act increases the need for protecting these rights.
Courts have innovated and adapted procedures to protect the child witness from trauma while ensuring that the accused’s right to test the prosecution’s case through cross-examination is not compromised.
This approach upholds the constitutional guarantee of a fair trial even in cases involving sensitive child victims.
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