The Madhya Pradesh High Court has reaffirmed that the procedural safeguards under the POCSO Act, 2012, including the protection of child victims from repeated testimony and aggressive questioning, take precedence over unfounded delays in cross-examination by the defense. The judgment underscores that the right to fair trial does not permit abuse of process under the guise of procedural rights.
Background & Facts
The Dispute
The appellants, accused of sexual and physical offenses against a 16-year-old girl from a Scheduled Caste community, faced trial under Sections 354-A, 354-D, 323, 506, 294 r/w Section 34 of the IPC, Sections 11(i), 12/11(ii) of the POCSO Act, and Sections 3(1)(w)(ii), 3(2)(Va), 3(1)(s) of the SC/ST (P.O.A) Act, 1989. The child victim, PW-1, was examined-in-chief on 25.07.2023, but cross-examination was repeatedly adjourned over multiple dates due to counsel’s claimed unavailability, health issues, and fatigue.
Procedural History
- 25.07.2023: Examination-in-chief of child victim completed.
- 28.08.2024, 12.09.2024: Cross-examination adjourned twice due to counsel’s unavailability.
- 17.02.2025: Partial cross-examination conducted (para 5 - 17); counsel sought adjournment citing fatigue from travel.
- 25.06.2025: Further cross-examination conducted (para 18 - 31); counsel appeared late and filed an application seeking transfer of case, refusing to continue cross-examination.
- Impugned Order (25.06.2025): Special Judge forfeited the right to further cross-examination, citing repeated adjournments and non-compliance with POCSO timelines.
Relief Sought
The appellants sought to set aside the order forfeiting their right to cross-examine the child victim, arguing that denial of this right violated their fundamental right to a fair trial and that the case was only three years old.
The Legal Issue
The central question was whether the right to cross-examination under the Code of Criminal Procedure can override the mandatory time-bound trial provisions and child protection mandates of the POCSO Act, 2012, particularly when the defense repeatedly delays proceedings without valid justification.
Arguments Presented
For the Appellant
The appellants contended that the forfeiture of cross-examination rights violated their constitutional right to a fair trial under Article 21. They argued that the case was only three years old and that adjournments were due to genuine reasons - counsel’s unavailability, health issues, and travel fatigue. They relied on State of Maharashtra v. Madhukar Narayan Mardikar to assert that cross-examination is indispensable to test credibility and that denial amounts to denial of justice.
For the Respondent/State
The State countered that the defense had exploited procedural delays, ignoring the POCSO Act’s strict timelines under Section 35 and the SC/ST (P.O.A) Act’s day-to-day trial mandate under Section 14(3). The prosecution emphasized that the child had appeared on multiple occasions, and the Special Court had acted within its statutory duty to prevent re-traumatization under Section 33(5) and Section 33(6). The State further argued that the 11 questions submitted were irrelevant and could be answered by documents or other witnesses.
The Court's Analysis
The Court examined the statutory framework of the POCSO Act, 2012, particularly Sections 33, 35, and 36, and Section 14(3) of the SC/ST (P.O.A) Act. It held that the Special Court’s duty to protect the child from repeated testimony and aggressive questioning is not discretionary but mandatory. The Court observed that the defense had not complied with Section 33(2), which requires counsel to communicate questions to the Court for formulation, yet repeatedly sought adjournments without submitting questions in advance.
"The Special Court was duty-bound to ensure that the child is not called repeatedly to testify... and that dignity of the child is maintained at all times. The defense’s conduct was not merely dilatory - it was in direct conflict with the legislative intent of the POCSO Act."
The Court distinguished State of Maharashtra v. Madhukar Narayan Mardikar, noting that while cross-examination is vital, it cannot be weaponized to prolong proceedings against a vulnerable child. The Court emphasized that Section 35(2) mandates completion of trial within one year of cognizance, and Section 14(3) of the SC/ST Act requires day-to-day trial with adjournments permitted only for compelling reasons recorded in writing. The defense’s conduct failed both tests.
The Court further held that the 11 questions submitted were not material to the case and could be addressed through documentary evidence or other witnesses. The transfer application filed by the defense was irrelevant to the issue of cross-examination forfeiture, which was a procedural matter within the Special Court’s jurisdiction.
The Verdict
The appeal was dismissed. The Court held that the right to cross-examination cannot be invoked to circumvent the time-bound, child-centric procedures mandated by the POCSO Act. The Special Court’s decision to forfeit further cross-examination was lawful, proportionate, and aligned with the Act’s protective objectives.
What This Means For Similar Cases
Procedural Compliance Is Non-Negotiable in POCSO Cases
- Practitioners must submit questions to the Special Court in advance under Section 33(2), not delay cross-examination through repeated adjournments.
- Courts must record reasons for any adjournment under Section 14(3) of the SC/ST Act and Section 35(1) of the POCSO Act.
- Delay beyond one year from cognizance triggers statutory violation, regardless of case complexity.
Child’s Dignity Overrides Defense Tactics
- Any attempt to use cross-examination as a tool for harassment or delay will be met with forfeiture of rights.
- Courts may reject irrelevant or redundant questions if they can be answered by documents or other witnesses.
- Defense counsel must prioritize the child’s welfare over procedural delays, even if it requires scheduling adjustments.
Transfer Applications Do Not Stay Trial Proceedings
- An application for transfer of case does not suspend the obligation to complete trial procedures.
- Courts must proceed with trial obligations irrespective of pending transfer petitions.
- Defense cannot use transfer applications as a tactical tool to stall cross-examination.
