delhi high court

Delhi High Court: In a case wherein, the petition was filed under Section 482 of Criminal Procedure Code, 1973 (‘CrPC’) to quash the order passed by Additional Sessions Judge, Protection of Children from Sexual Offences, Delhi, Swarana Kanta Sharma, J.*, opined that victim and her mother could not be recalled to relive the entire trauma only because the new counsel was dissatisfied with the elaborate cross-examination of these witnesses and accordingly dismissed the petition and directed the Trial Court to ensure that the trial is concluded expeditiously in the present case.


The petitioner-accused had allegedly committed rape upon the prosecutrix, the Respondent 2, following which, an FIR for offences punishable under Sections 376, 506 of Penal Code, 1860 (‘IPC’) and Section 6 of Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’), was registered on 20-10-2016. The examination-in-chief and cross-examination of the prosecutrix and of the mother of the prosecutrix was concluded on 20-10-2018. Thereafter, on 30-08-2019, the doctor who had proved the contents of Medico-legal case (‘MLC’) was examined and discharged.

Thereafter, the petitioner-accused had moved an application under Section 311 CrPC to seek directions to re-call the prosecutrix and her mother on the ground that the cross-examination which had been conducted earlier was conducted just for the sake of formality without discussing the charge levelled against the petitioner-accused. However, the same was dismissed by the Trial Court vide order dated 23-05-2023.

Subsequently, the petitioner-accused had filed a petition before the Court.

The petitioner-accused contended that the gravity of the allegations levelled against the petitioner were neglected and no questions had been put to the prosecutrix in the entire cross-examination regarding the alleged incident. The petitioner-accused had also stated that the mother of the prosecutrix, and the concerned doctor were also needed to be cross-examined again.

The petitioner-accused further contended that the bar under Section 33-(5) of the POCSO Act, which ensures that the child was not repeatedly called to testify in the Court, was not absolute and Court had the discretion to recall the witness in the interest of justice.

Analysis, Law, and Decision

The Court opined that while the bar under Section 33-(5) of POCSO Act might not be absolute and balance of rights needed to be maintained, the Court’s discretion in exercising its power to re-summon a witness for cross-examination had to be exercised with circumspection, caution, and utmost sensitivity. Section 33-(5) had to be interpreted to balance and applied with the right under Section 311 CrPC of accused and right to fair trial of an accused depending on facts and circumstances of each case.

The Court referred to State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402, and opined that the victim, being only of seven years of age had gone through this repeated trauma on number of occasions, cannot be directed to appear again after six years to depose about the same incident, only on the ground that the previous counsel had cross-examined the witness in a manner which the new counsel does not find sufficient or appropriate.

The Court opined that any law, whether gender based or not, had the potential of being misused. However, only because laws could be misused, the legislature could not stop enacting laws nor judiciary could stop applying such laws since they had been enacted to curb the larger menace of commission of such offences and getting justice to genuine victims.

The Court noted that at times, people might not even report such cases of sexual assault of children of tender age as in the instant case, for the fear of being harassed by continuous visits to the Courts or fear of embarrassment and traumatic cross-examination. In view of the same, though the accused had to be granted and ensured a fair trial, it could not mean being afforded unjustified repeated opportunities of cross-examination in every case to indicate fair trial.

The Court further opined that while balancing the right of the accused to a fair trial and upholding the intent of the legislation, the Courts were duty bound to remain sensitive to the plight of the seven-year-old sexual assault victim. She and her mother could not be recalled to relive the entire trauma only because the new counsel was dissatisfied with the elaborate cross-examination of witnesses.

Accordingly, the Court dismissed the petition and directed the Trial Court to ensure that the trial to be concluded expeditiously in the present case.

[Rakesh v. State (NCT of Delhi), 2023 SCC OnLine Del 4774, decided on 31-07-2023]

*Judgment by- Justice Swarana Kanta Sharma

Advocates who appeared in this case :

For the Petitioner: Hitesh Thakur, Advocate;

For the Respondents: Manoj Pant, APP for State with Insp. Mahesh Kumar, P.S. Keshav Puram.

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