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Judgment
The present petition has been filed by the sole accused in Spl.SC No.106 of 2023 on the file of Principal Special Court for Exclusive Trial of Cases under POCSO Act, 2012, Sivagangai, seeking to set aside the order, dated, 17.07.2026 passed in Crl.MP.No.19 of 2026, wherein, the request of the petitioner to recall PW1 for cross-examination has been rejected.
It could be seen from the records that the petitioner is charged with the offences under Sections 5(l), 6 of POCSO Act and 506(i) of IPC.
PW1/Victim was chief examined on 04.06.2026 and she was not cross examined on the said date. The petitioner has filed the present application under section 348 of BNSS on 22.06.2026, seeking to recall PW1 for the purpose of cross examination. It is stated in the petition that they were not able to get instructions from the accused, since he was not keeping in good health. However, this application came to be dismissed by the trial Court, citing section 33(5) of POCSO Act. Challenging the same, the present petition has been filed.
4,According to the learned counsel appearing for the petitioner, the date of birth of the victim is 31.03.2008 and she attained majority in March, 2026. When she was chief examined, she was a major and therefore, the rigour of Section 33(5) of POCSO Act would not get attracted. He relied upon the decision of this Court in 2022 LW 116.
Heard the learned counsel appearing the petitioner and perused the materials available on record.
As could be seen from the records, when PW1/victim was chief examined on 04.06.2026, she was already a major and the present application has been filed within a period of three weeks ie., on 22.06.2026 for recalling PW1. In such circumstance, when the victim has already attained a majority, the rigour of section 33(5) of POCSO Act would not get attracted.
In such view of the matter, this Court is inclined to pass the following orders:
The impugned order in Crl.M.P. No. 19 of 2026 in Spl.S.C. No.106 of 2023, dated 17.07.2026 passed by the learned Sessions Judge, Principal Special Court for Exclusive Trial of Cases under POCSO Act, 2012, Sivagangai is set aside and the petitioner shall be permitted to recall and cross examine PW1;
the petitioner shall pay batta within a period of three days from the date of receipt of copy of this order;
the petitioner is directed to cross examine PW1 on the date on which she appears;
the petitioner shall not be granted any further opportunity for cross examination of PW1.
In the above terms, this Criminal Original Petition stands allowed. Consequently, connected miscellaneous petition is closed.