Case Note & Summary
The case involved a writ petition filed by the petitioner, the mother of a victim child, challenging an order from a Special Court that allowed the accused to recall the victim for further cross-examination under Section 311 of the Code of Criminal Procedure, 1973. The petitioner contended that the victim had already been extensively cross-examined and that allowing further cross-examination would violate her rights under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The court noted that the accused had previously failed to cross-examine the victim on a scheduled date, leading to the initial cross-examination being treated as nil. Subsequent applications by the accused to recall the victim were filed, citing the need to address material omissions and admissions made during the cross-examination of the victim's mother. The court considered the arguments from both sides, with the petitioner arguing against the recall based on the victim's rights and the prosecution supporting the petitioner's stance. However, the court ultimately found that the recall was necessary to ensure a just decision, given the circumstances of the case and the nature of the evidence that needed to be confronted with the victim. The court emphasized the importance of balancing the rights of the victim with the rights of the accused, allowing the recall while imposing costs to mitigate any potential hardship to the victim. The decision underscored the court's discretion under Section 311 of the Cr.P.C. and the need for careful consideration of each case's unique facts. The court allowed the application for recall, directing the accused to pay costs to the victim for her appearance (Paras 1-10).
Headnote
A) Criminal Procedure - Recall of Witness - Justification for Recall - Code of Criminal Procedure, 1973, Section 311 - The court allowed the recall of the victim for further cross-examination, emphasizing the necessity of confronting omissions and admissions from previous testimonies to ensure a just decision. The court noted that the victim's prior extensive cross-examination did not preclude the need for further questioning in light of new evidence. Held that the recall was justified under the circumstances (Paras 9-10).
Issue of Consideration
Whether the accused made out a ground to recall the witness PW-2 for the purpose of further cross-examination?
Final Decision
The court quashed the order dated 13-03-2024 allowing the application for recall of the victim for further cross-examination under Section 311 of the Cr.P.C., emphasizing the need to protect the victim's rights and prevent re-traumatization.
Law Points
- Recall of witness
- Section 311 Cr.P.C.
- POCSO Act
- Section 33(5)
- victim's rights
- fair trial
- judicial discretion
