In a significant ruling, the Delhi High Court rejected a petition to recall a child witness for re-examination in a sexual assault case, citing the need to prevent further trauma to the victim. Justice Amit Mahajan, presiding over the case, emphasized that while a fair trial is essential, it should not come at the expense of the victim’s well-being, particularly in sensitive cases involving minors.
Background of the Case
The case in question, Sudarshan v. The State (CRL.M.C. 7409/2024), revolves around an incident reported under FIR No. 18/2022 at Police Station Kanjhawala. The petitioner, Sudarshan, was seeking to challenge the order passed by the Additional Sessions Judge, Rohini Courts, New Delhi, dated October 11, 2023, in Sessions Case No. 144/2022. This order had dismissed Sudarshan’s application under Section 311 of the Code of Criminal Procedure (CrPC) to recall the child victim for further cross-examination.
The victim, a 13-year-old girl, had initially been examined in chief on July 7, 2022, and cross-examined by the petitioner’s then-appointed Legal Aid Counsel on the same day. Dissatisfied with the manner in which the cross-examination was conducted, the petitioner later appointed new private counsel and filed an application seeking a second opportunity to cross-examine the child witness, citing inadequate questioning by the previous counsel.
Legal Issues Involved
1. Applicability of Section 311, CrPC:
– The primary issue was whether the trial court’s discretion under Section 311 of the Code of Criminal Procedure (CrPC) was exercised correctly. This provision allows the court to summon or recall a witness if their testimony is necessary for the just decision of the case. The petitioner argued that the cross-examination of the child witness was not conducted properly by the earlier counsel, and hence, a recall was essential for a fair trial.
2. Protection of Child Victims under the POCSO Act:
– The case also involved interpreting Sections 33(5) and 35(2) of the Protection of Children from Sexual Offences (POCSO) Act. These provisions are designed to protect child victims from the trauma of repeated court appearances and prolonged trials. The legal question was whether recalling the child witness would contravene these protections.
3. Balancing Fair Trial Rights with Victim Protection:
– The broader legal issue was to balance the accused’s right to a fair trial with the need to protect the victim, particularly a minor, from additional psychological harm. The court had to determine if denying the recall would affect the accused’s right to defence or if permitting it would cause undue hardship to the victim.
Court’s Observations
1. Discretion under Section 311, CrPC:
– Justice Amit Mahajan observed that the discretionary power under Section 311 is broad but must be exercised judiciously. The court should only recall a witness if it is absolutely essential for the just decision of the case. “The power to recall witnesses is not meant to fill in gaps in the defence or to prolong the trial unnecessarily,” the court noted, citing Rajaram Prasad Yadav v. State of Bihar (2013) 14 SCC 461.
2. Impact on Child Victims:
– The court highlighted the potential psychological impact of recalling a child witness, especially in cases of sexual assault. It noted that the POCSO Act specifically aims to prevent repeated trauma to child victims. “Recalling a victim, particularly a child, can lead to significant emotional distress and re-victimization,” Justice Mahajan observed.
3. Delay in Filing the Application:
– The court found the petitioner’s justification for the delay in filing the application unconvincing. The petition was filed 15 months after the initial examination of the victim, and the court held that changing legal representation did not justify the recall. The court emphasized that accepting such reasoning could set a precedent allowing indefinite delays and repeated examinations, undermining the finality and efficiency of trials.
4. Ensuring a Fair Trial:
– While acknowledging the importance of a fair trial, the court stated that this principle cannot be stretched to the extent of causing additional hardship to the victim. “The right to a fair trial must be balanced with the rights of the victim, particularly in cases involving vulnerable witnesses,” the judgment read.
5. Compliance with POCSO Act:
– Justice Mahajan reaffirmed the importance of adhering to the provisions of the POCSO Act, particularly Section 33(5), which seeks to protect child victims from repeated court appearances. He noted that the Act mandates swift and conclusive trials, and any deviation without compelling reasons would be against the legislative intent.
Court’s Decision
In its ruling, the Delhi High Court upheld the decision of the trial court, dismissing Sudarshan’s petition. The court found that there was no substantive reason for recalling the child witness and that doing so would violate the principles of justice by subjecting the victim to unnecessary emotional distress.
The court further noted that the petitioner had delayed filing the application by 15 months after the initial examination of the victim, and changing legal representation did not constitute a valid ground for recall. Allowing such practices, the court warned, could lead to endless prolongation of trials, undermining the efficiency and finality of the judicial process.
Legal Representatives and Parties Involved
– Petitioner: Sudarshan, represented by Advocates Ms. Sakshi Sachdeva and Ms. Ritika Rajput.
– Respondent: The State (Govt. of NCT of Delhi), represented by Mr. Naresh Kumar Chahar, Additional Public Prosecutor, along with SI Preeti Saini from Police Station Kanjhawala.
