Witnesses cannot be routinely recalled on the ground that cross-examination was not proper for reasons attributable to a counsel: High Court of Delhi

IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.A. 155 2020 Date of Decision 24 01 2022 IN THE MATTER OF: AMARNATH TIWARI Appellant Through: Mr. Satnarain Sharma Mr. Kartik Agarwal Mr. Shakti Saini and Mr. Anuj Kumar Advocates. Through: Ms. Meenakshi Chauhan APP for State. Respondent STATEVIA VIDEO CONFERENCING) HON BLE MR. JUSTICE MANOJ KUMAR OHRI MANOJ KUMAR OHRI J.CRL.M.A. 2867 2020 Allowed subject to all just exceptions. Application is disposed of. CRL.M.A. 2953 2020 The present application has been filed under Section 391 read with Section 311 Cr.P.C. on behalf of the appellant seeking recall and cross examination of PW3 PW4 PW5 and PW7. The sole contention raised by learned counsel for the appellant is that in trial the aforesaid witnesses could not be effectively cross examined resulting in serious prejudice to the appellant. Signature Not Verified Digitally Signed By:SANGEETA ANAND Signing Date:01.02.2022 Page 1 of 9 3. The prayer sought in the application is vehemently opposed by I have heard the learned counsels as well as gone through the Trial learned APP for the State. Court Record. In the present case vide order dated 05.03.2015 the appellant was charged for the commission of offence under Section 5(m) of the POCSO Act punishable under Section 6 of the POCSO Act for having inserted his finger in the vagina of the child victim who was aged about 6 years at the relevant time. The appellant pleaded not guilty and claimed trial. To support its case the prosecution cited a total of 13 witnesses including the child victim „M‟ her younger brother „R‟ her mother „B‟and her father „M‟7 SCC 56 and Natasha Singh v. Central Bureau of Investigationreported as 2013) 5 SCC 741. From an overview of the decisions it is discernible that the rejection acceptance of an application filed under Section 311 Cr.P.C. is closely linked with guaranteeing a fair trial that too not only to the accused but also to the victim(s) witnesses and society at large. Signature Not Verified Digitally Signed By:SANGEETA ANAND Signing Date:01.02.2022 Page 3 of 9 Fundamentally a fair and impartial trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced. A fair trial is required to be conducted in such a manner which would totally ostracise injustice prejudice dishonesty and favouritism 4 SCC 516]. 11. At the same time however in Statev. Shiv Kumar Yadav and Another reported as 2 SCC 402 the Supreme Court has cautioned that witnesses cannot be allowed to be routinely recalled on the ground that cross examination was not proper for reasons attributable to a counsel. Sufficient and cogent reasons must exist for a Court to permit recall of witnesses particularly in cases of heinous offences. Relevant excerpt from the decision is reproduced hereunder: “15. The above observations cannot be read as laying down any inflexible rule to routinely permit a recall on the ground that cross examination was not proper for reasons attributable to a counsel. While advancement of justice remains the prime object of law it cannot be understood that recall can be allowed for the asking or reasons related to mere convenience. It has normally to be presumed that the counsel conducting a case is competent particularly when a counsel is appointed by choice of a litigant. …witnesses cannot be expected to face the hardship of appearing in court repeatedly particularly in sensitive cases such as the present one. It can result in undue hardship for victims especially so of heinous crimes if they are required to repeatedly appear in court to face cross examination. 27. …Undoubtedly fair trial is the objective and it is the duty of the court to ensure such fairness. …Mere observation that recall was necessary “for ensuring fair trial” is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised Signature Not Verified Digitally Signed By:SANGEETA ANAND Signing Date:01.02.2022 Page 4 of 9 judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial. Having regard to these considerations we do not find any ground to justify the recall of witnesses already examined.” emphasis added) 12. Considering that two of the prosecution witnesses sought to be recalled in the present case are child witnesses i.e. the child victim PW4 aged 6 years at the time of examination) and the child victim’s brother it is deemed apposite to allude to Section 33(5) of the POCSO Act which prescribes that the Special Court shall ensure that a child is not repeatedly called to testify in the Court. Needless to state the provision is targeted at ensuring protection to a child witness from victimization and harassment by repeated appearances in Court. In Jaidev v. State CRL.M.C. 4412 2019 this Court had the occasion to consider the mandate of Section 33(5) of the POCSO Act under similar circumstances. Keeping in view facts and circumstances of the case the petition which was filed against the order of the Trial Court rejecting application of the accused for recall of a child witness was dismissed and it was observed: “11. Chapter 8 of the POCSO Act specifies the procedure and powers of Special Courts and recording of evidence. A bare reading of Section 33 of the POCSO Act would show that keeping in view the objects and reasons of the POCSO Act a special procedure has been adopted for recording of evidence of the child witness. Under Section 33(2) it is required that the questions to be put to a child witness shall Page 5 of 9 Signature Not Verified Digitally Signed By:SANGEETA ANAND Signing Date:01.02.2022 be first communicated to the Special Court who then in turn would put those questions to the child witness. Section 33(5) specifically provides that child is not to be called repeatedly to testify in the Court. 16. In the present case the child witness was about 4 years of age at the time of the incident. At the time of her examination in chief on 16.12.2017 she was about 8 years of age. The petitioner alongwith other accused persons was duly represented before the trial court through their counsels who had appeared on many dates prior to the examination of the child witness. 17. The recall of the child witness in the facts of the present case will cause her enormous mental trauma… 18. A Coordinate Bench of this Court in Bimla Devi vs. State reported as 2017 SCC OnLine Del 11425 while taking note of Section 33(5) of the POCSO Act rejected the prayer to recall the witness and to the similar effect are the decisions of the Calcutta High Court In Re: Debashis Mondal reported as 2017 SCC OnLine Cal 1191 and Punjab and Haryana High Court in Avtar Singh vs. State of Haryana & Anr. CRM M 8524 2015decided on 9th December 2016. 19. In view of the aforesaid discussion I am of the opinion that recalling the child witness who would be only 10 years of age by now would make her re live the mental trauma and the same may play havoc on her psyche.” 13. The Courts throughout the country being cognizant of the mandate contained in Section 33(5) of the POCSO Act have likewise declined entertaining requests for recall of child witnesses is 16. From an overview of the material on record it is borne out that sufficient opportunity to cross examine the prosecution witnesses who are sought to be recalled at this stage was available to the appellant as well as availed. Two of the said witnesses were in fact recalled during the trial pursuant to an application filed under Section 311 Cr.P.C. by the appellant which was not pressed with respect to the other two witnesses by the appellant himself. In the present application it is averred that proper cross examination of the witnesses has not taken place. However no sufficient ground has been raised to incline this Court to direct recall of the prosecution witnesses which power needless to state has to be exercised sparingly and judiciously. Further the effect of prejudice occasioned by the cross examination of prosecution witnesses by the Bar appointed counsel stood remedied when the appellant’s application under Section 311 Cr.P.C. was allowed by the Trial Court albeit partially. Even though PW4 and PW5 were not recalled there is nothing on record to indicate that the two witnesses were not cross examined at length and or on material aspects. 17. Keeping in view the aforesaid and the exposition of law on the issue this Court is of the considered opinion that the present application lacks merit and is an abuse of the process of the Court. Accordingly the same is dismissed. Signature Not Verified Digitally Signed By:SANGEETA ANAND Signing Date:01.02.2022 Page 8 of 9 CRL.A. 155 2020 List in due course at its own turn. JANUARY 24 2022 MANOJ KUMAR OHRI) JUDGE Signature Not Verified Digitally Signed By:SANGEETA ANAND Signing Date:01.02.2022 Page 9 of 9 

Summary: The rejection or acceptance of an application filed under Section 311 Cr.P.C. is closely linked with guaranteeing a fair trial not only to the accused but also to the victims, witnesses and society at large. Witnesses cannot be allowed to be routinely recalled on the ground that cross-examination was not proper for reasons attributable to a counsel. Sufficient and cogent reasons must exist for a Court to permit recall of witnesses, particularly in cases of heinous offences and the same was upheld by High Court of Delhi through the learned bench led by Justice Manoj Kumar Ohri in the case of AMARNATH TIWARI vs. STATE (NCT OF DELHI) [CRL.A. 155/2020] on 24.01.2022. The facts of the case are that the appellant was charged for the commission of offence under Section 5(m) of the POCSO Act. The appellant pleaded not guilty in the trial. To support its case, the prosecution cited a total of 13 witnesses including the child victim. Subsequently, the accused did not raise a grievance regarding cross-examination of the prosecution witnesses until the filing of the present application. The present application has been filed by the appellant under Section 391 read with Section 311 Cr.P.C as he seeks to recall stated prosecution witnesses, on the ground that proper cross-examination did not take place. The appellant’s counsel contended that during the trial, the witnesses could not be effectively cross-examined resulting in serious prejudice to the appellant as on the said day, apparently a strike call was given by the Bar and for that reason a counsel who was appointed by the Bar had represented the appellant and cross-examined witnesses instead of his privately engaged counsel. Since proper cross-examination did not take place, the appellant seeks to recall and cross-examine the witnesses. In view of the facts and circumstances of the cases, Court was of the opinion that the present application lacks merit and is an abuse of the process of the Court as there is nothing on record to indicate that the two witnesses were not cross-examined at length or on material aspects. and therefore, the application was dismissed. The Court observed that, “it is discernible that the rejection or acceptance of an application filed under Section 311 Cr.P.C. is closely linked with guaranteeing a fair trial not only to the accused but also to the victims, witnesses and society at large. Witnesses cannot be allowed to be routinely recalled on the ground that cross-examination was not proper for reasons attributable to a counsel. Sufficient and cogent reasons must exist for a Court to permit recall of witnesses, particularly in cases of heinous offences”.