Delhi High Court: In a petition seeking to set aside the order dated 1-7-2025 (‘impugned order’), passed by Additional Sessions Judge, FTSC, POCSO, West District, Tis Hazari Courts, New Delhi (‘ASJ’), whereby the petitioner’s application for recalling witnesses for cross-examination (‘application’) was dismissed, a Single Judge Bench of Dr. Swarana Kanta Sharma J., observed that recalling a witness, especially in cases under Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’), could not be permitted to be delayed by filing applications disclosing no cogent or justifiable reason for recalling such witnesses. The Court stated that permitting such an exercise would not only amount to allowing the defence to fill in lacunae but would also defeat the very objective of expeditious disposal of trials under POCSO Act and accordingly, dismissed the present petition.
Background:
A FIR was registered under Sections 64(2)(f)/64(2)(m)/65(1) of the Bharatiya Nyaya Sanhita, 2023 and Section 6 of the POCSO Act against the petitioner, whereby the allegations against him were that he had repeatedly sexually assaulted the victim (who was less than 13 years of age), as a result of which she had conceived. The petitioner submitted an application to ASJ for recall of two witnesses for cross-examination which had been dismissed by the ASJ.
Thus, the petitioner had filed the present petition stating that there were discrepancies in the testimony of the aforesaid two witnesses, which required clarification to prevent miscarriage of justice. He further submitted that the ASJ had ignored, that the right of recalling witnesses was not limited by prior cross-examination, but was intended to serve the ends of justice. The respondents had submitted that specific questions had been asked in the cross-examination to assail the testimonies of the said two witnesses.
Case Analysis and Decision:
The Court observed that the petitioner, in the application to Trial Court and present petition merely stated that certain clarification was required, for which cross-examination of the said two witnesses was sought. However, the Court stated that the petitioner had failed to demonstrate a single concrete reason as to what further clarification was required from the said witnesses to justify their recall.
The Court observed that recalling a witness, especially in cases under POCSO, which were required to be tried expeditiously, could not be permitted to be delayed by filing applications which disclose no cogent or justifiable reason for recalling such witnesses. It was further observed that such a vague assertion, without specifying the nature of the discrepancies or their relevance to the just adjudication of the case, could not constitute a sound ground for allowing an application under Section 348 of the BNSS, as the specific purpose of the provision was to enable the Court to summon or recall witnesses whose evidence appears essential for arriving at a just decision in the case. The Court stated that the power under Section 348 of the BNSS, must be used for legitimate and lawful purpose and not to fill lacunae in the prosecution or defence, or to prolong the trial proceedings unnecessarily.
The Court further observed that while Section 348 of the BNSS granted discretion to ensure that the truth is brought on record and justice is achieved, so it must be invoked cautiously and sparingly to prevent delays, frivolous applications, or any kind of misuse. The Court noted that permitting such an exercise would not only amount to allowing the respondent to fill in lacunae but would also defeat the very objective of expeditious disposal of trials under POCSO Act.
The Court, thus finding no infirmity in the reasoning or conclusion arrived at by the ASJ while dismissing the application under Section 348 BNSS dismissed the petition finding it devoid of merit.
[Mohsin Khan v. State (NCT of Delhi), 2025 SCC OnLine Del 5609, decided on 12-8-2025]
Advocates who appeared in this case:
For the Petitioners: Sumit Choudhary, Advocates
For the Respondent: Naresh Kumar Chahar, APP for the State with Chandrakant, Advocate
