The Delhi High Court observed that the powers under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CRPC”) are wide enough that the Court can recall a witness if it is necessary for a just decision. However, wide powers have to be used cautiously in light of the facts and circumstances of the case. Noting that the Application was filed after 3 years from the date of the cross-examination, the Bench opined that POCSO is special legislation and there are provisions in the Act itself that provide for special procedures for recording statements of a child witness. It must be ensured that the child is not called repeatedly in Court. Considering that in the present case, the victim suffers from 50% mental disability, the Court held that there is no reason to allow for the recalling of a witness.
Brief Facts:
A complaint was made by the sister of the Petitioner based on which an FIR was lodged. It is the case of the Complainant that when the daughter of the Complainant was alone, the Petitioner came and touched the breast of the daughter.
After the filing of the charge sheet and examination of witnesses, the Petitioner filed an application under Section 311 of the CRPC seeking for recalling of the victim for cross-examination on the ground that on the day of cross-examination proxy counsel was present and therefore, the cross-examination could not be done properly. The Application was dismissed.
The present Petitioner has been filed under Section 482 of the CRPC against the said order.
Contentions of the Petitioner:
It was argued by the Petitioner that the Learned Trial Court did not consider that the cross-examination was done by the proxy counsel and not the main counsel. It was also contended that if recalling of witness is not allowed, the same would infringe upon the Petitioner’s right to a fair trial.
Contentions of the Respondent:
It was argued that the Application for recalling the witness was filed after 3 years from the date of the cross-examination of the said witness. The Petitioner could have filed the Application earlier and this long-time gap proves that Petitioner is finding loopholes that should not be allowed considering the gravity of the offence.
It was also submitted that the victim is a child with special needs as she has been suffering from 50% mental disability. The recalling of witnesses is only being asked because there is a possibility that the Petitioner has influenced the parents of the victim.
Observations of the Court:
The High Court observed that the powers under Section 313 CRPC are wide enough that the Court can recall a witness if it is necessary for a just decision. However, wide powers have to be used cautiously in light of the facts and circumstances of the case.
In the present case, the Bench noted that the Application for recalling of the witness was filed after 3 years and there is no justification for such delay. The possibility of influencing the parents of the victim cannot be ruled out. It was also noted that the proxy counsel of the Petitioner while conducting cross-examination did not even take any plea regarding not being conversant with the facts of the case.
The decision of the Court:
The Delhi High Court remarked that POCSO is special legislation and provisions in the Act itself provide special procedures for recording statements of a child witness. It has to be ensured that the child is not called repeatedly in Court. Considering that in the present case, the victim suffers from 50% mental disability, the Court opined that there is no reason to allow for the recalling of a witness.
The Delhi High Court accordingly dismissed the petition.
Case Title: SH. Phool Singh @ Phool Chand v. State (NCT of Delhi)
Coram: Hon’ble Ms. Justice Poonam A. Bamba
Case No.: CRL.M.C. 4217/2022
Advocates for Petitioner: Advs. Mr. Faisal Nassem, Mr. Jitender Choudhary, Mr. M. Azhar, Mr. Vinay Garg
Advocate for Respondent: Ms. Priyanka Dalal, APP
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