Risk Of Victimization & Harassment Through Repeated Court Appearances: Delhi HC Dismisses Plea For Recalling POCSO Victim For Additional Cross-Examination

The Court clarified that 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 Single Bench of Justice Amit Mahajan observed, “Section 33(5) of the POCSO Act explicitly states that the child victim should not be repeatedly called to testify in court. The legal framework clearly aims to protect child witnesses from the risk of victimization and harassment through repeated court appearances. Therefore, 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.”

Advocate Sakshi Sachdeva appeared for the petitioner, while APP Naresh Kumar Chahar represented the respondents.

The accused was primarily aggrieved by the denial of her request to recall and cross-examine the victim, which was made on the grounds that his counsel had changed and that the cross-examination conducted by the previous counsel, appointed through legal aid, was allegedly improper.

Section 311 of the CrPC is a procedure for recall of witnesses which can be permitted in order to prevent failure of justice.

The High Court observed that recalling a victim for additional cross-examination was not a matter to be taken lightly. “When a victim, especially a child or someone of tender age, is recalled to the stand, they are compelled to relive the traumatic events associated with the incident. Such repeated questioning can result in significant emotional distress and further psychological harm,” the Court explained.

“It is apparent from the perusal of the application filed by the petitioner that nothing has been pleaded which would justify the recall of witnesses or which is essential for a just decision of the case. Vague averments have been made that recall of the witnesses is required as the petitioner failed to examine certain important aspects that were vital to the case,” the Bench noted.

The Court noted that the petition was filed almost eleven months after the impugned order was passed. The Court explained that while the accused was within his rights to change his legal counsel, the same could not be used as a strategy to compensate for gaps in the defence.

“Accepting the petitioner’s argument in this context would undermine the finality of trials. If such a reasoning were permitted, it would set a precedent where, after a certain amount of time has passed, a new counsel could be appointed to represent the accused, potentially re-opening proceedings by requesting to recall the victim for further examination. This would essentially allow the accused to continually seek to fill perceived gaps, thereby prolonging the trial indefinitely,” the Bench remarked.

Consequently, the Court held, “In view of the above, this Court finds no infirmity with the impugned order, and the present petition being without any merits is dismissed.”

Accordingly, the High Court dismissed the petition.

Cause Title: Sudarshan v. The State (Govt. Of NCT Of Delhi) & Anr. (Neutral Citation: 2024:DHC:7280)

Appearance:

Petitioner: Advocates Sakshi Sachdeva and Ritika Rajput

Respondents: APP Naresh Kumar Chahar

Click here to read/download the Judgment