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Synopsis

The Delhi High Court, recently, held that vulnerable witnesses must be protected from unnecessary retraumatization, especially in sensitive cases. The court made such observations in a petition filed by the accused challenging the trial court’s order dismissing an application to recall the child victim for cross-examination on account of a change in the accused’s counsel. 

The bench of Justice Amit Mahajan held, “A mere averment that recalling the victim is necessary for ensuring a fair trial, merely because of a change in counsel, is insufficient in the absence of any cogent reasons”. 

A petition was filed challenging the order of the trial court that dismissed the application to recall a victim for cross-examination. However, the trial court noted that the victim was examined, at which time she was only 13 years old, and was duly cross-examined by the Legal Aid Counsel on the same day. The application was filed approximately 15 months after the victim's examination, without any justification for the delay. 

The trial court had observed that while a fair trial requires providing the accused with an opportunity to defend themselves, resummoning the victim for cross-examination, after it has already been conducted, would contravene legal provisions, particularly in cases of sexual assault under Section 33 (5) of the POCSO Act.

Advocates Sakshi Sachdeva and Ritika Raj, for the accused, argued that the cross-examination conducted by the Legal Aid Counsel was inadequate, as no questions regarding the alleged incident or its date and time were asked of the victim.

Additional Public Prosecutor Naresh Kumar Chahar, for the State, opposed the petition but conceded that the right to cross-examine the prosecutrix was closed on the same day her re-examination took place.

The court noted that Section 311 of the CrPC provided a procedure for recalling witnesses to prevent a failure of justice, though it was not to be applied mechanically in every case. “The learned Trial Court has power under Section 311 of the CrPC to summon witness and call for evidence at any stage if it is felt that the same is required for a just decision of the case. The power, however, is not to be exercised in routine manner”, the court added. 

The court further reiterated that a court could summon a person at any point in the trial if their evidence was crucial for a just outcome. The scope of Section 311 was broad, enabling the summoning or recalling of witnesses at any stage if the court deemed it necessary to achieve justice. However, the court outlined several considerations that should be taken into account when dealing with an application under Section 311 of the CrPC. 

The court noted that the accused, in this case, was primarily aggrieved by the rejection of her request to recall and cross-examine the victim, arguing that her counsel had changed and the previous cross-examination conducted by a legal aid counsel was inadequate.

However, the court rejected the request of the accused highlighting that the reasons provided by the accused were insufficient. 

The court highlighted that recalling a victim, particularly in cases involving minors or those of tender age, was not a trivial matter. Recalling a victim to relive the traumatic events could cause significant emotional distress and psychological harm. The legal system seeks to balance the accused’s rights while protecting vulnerable witnesses from unnecessary trauma, particularly in sensitive cases.

Upon reviewing the accused’s application, the court found no substantial grounds to justify the recall of the witness, nor was it shown to be necessary for a fair decision. General assertions were made that certain critical aspects were overlooked in the initial examination, but such delayed applications, aimed at rectifying supposed omissions, risked undermining the fairness and efficiency of the trial, which should proceed swiftly and conclusively.

Furthermore, the petition was filed nearly 11 months after the impugned order. Although a litigant has the right to change counsel, this could not be used as a strategy to address shortcomings in the defense. Accepting the petitioner’s reasoning would disrupt the finality of trials, setting a precedent where counsel changes could lead to requests to reopen proceedings by recalling the victim, thus prolonging trials indefinitely.

The court also emphasized section 35(2) of the POCSO Act which mandates that trials should be completed within one year from the court's cognizance of the offence. “The purpose of this provision is to prevent prolonged trials, ensuring that the child victim is not subjected to the trauma of reliving the abuse over an extended period”, the court outlined. 

Additionally, the court noted that the aforementioned section prohibits the repeated summoning of a child victim to testify. The legal framework is aimed at shielding child witnesses from the risk of further victimization and harassment, the court further added. Therefore, merely asserting that recalling the victim was necessary for a fair trial, solely due to a change in counsel, was insufficient without providing valid reasons.

Case Title: Sudarshan v The State (2024:DHC:7280)