The Delhi High Court has recognized the significant right of an accused to cross-examine a witness under the Protection of Children from Sexual Offences (POCSO) Act, considering the serious nature of the offences and the severe punishments prescribed by the law.
Justice Tushar Rao Gedela, while allowing the accused in a POCSO case the opportunity to cross-examine a prosecution witness, stated that due to the gravity of the offences and the stringent penalties under the POCSO Act, it is reasonable to assume that the right to cross-examination holds even greater importance.
Brief Facts:
The accused is currently facing trial for offences under sections 354, 354A, and 354D of the Indian Penal Code, as well as section 12 of the POCSO Act, based on an FIR registered in 2019.
The accused had challenged the trial court's decision of January 3, which denied his request to recall the prosecution witness (PW1) for cross-examination.
Contentions by the Accused:
The accused argued that PW1 is a crucial witness in the case, and the denial of his right to cross-examination would have a detrimental impact on his defence and violate the principles of natural justice.
Contentions by the Respondent:
On the other hand, the prosecution contended that the accused had been given multiple opportunities for cross-examination, but failed to take advantage of them. It was also argued that the accused's application to summon the witness was filed with a significant delay of approximately one year, during which time six other witnesses had already been examined.
Observations by the Court:
Granting relief to the accused, the court emphasized that in cases involving the safety of women, criminal courts must ensure that witnesses are not harassed. However, considering the presumption against the accused under Section 29 of the POCSO Act, it is crucial to provide him with a reasonable opportunity to cross-examine the witnesses, as this right is inherent and cannot be denied.
Justice Gedela also noted that although the accused had filed the application to recall the witness with a significant delay, it did not automatically disqualify him from cross-examining PW1.
The court issued an order stating that the petitioner should be allowed to cross-examine PW1 on August 7, 2023, with no further opportunities granted to the accused. The trial court was instructed to proceed with recording the evidence of the remaining witnesses.
The decision of the Court:
Furthermore, Justice Gedela directed the petitioner to pay Rs. 10,000 to the witness within one week as a precondition for the granted opportunity. Any breach of these conditions would result in the automatic cancellation of the opportunity provided.
Case Name: Sushil Kumar vs The State Gnctd Through Sho & Anr.
Coram: Hon’ble Mr. Justice Tushar Rao Gedela
Case No.: CRL.M.C. 2595/2023
Advocates of the Petitioners: Mr. Devendra Kumar, Advocate
Advocates of the Respondent: Mr. Shoaib Haider, APP with SI Rakesh Kumar, P.S. Tigri
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