Vishwa Pratap @ Bopy v. The State Govt of NCT of Delhi

1. The instant petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (‘Cr.P.C’) has been filed on behalf of petitioner seeking setting aside of impugned order dated 11.08.2023, passed by learned Additional Sessions Judge (POCSO), North, Rohini Courts, New Delhi (‘Trial Court’), in case arising out of FIR bearing no. 396/2017, registered at Police Station Bhalswa Dairy, Delhi for offences punishable under Sections 376/451/506 of the Indian Penal Code, 1860 (‘IPC’) and Section 6 of Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’).

2. Briefly stated, the facts of the case are that the present FIR was registered on the complaint of the victim,aged about 13 years, who had stated that on 03.07.2017, when she was alone at her house, the accused had entered the house at about 9:00 PM and had closed the door. It was alleged that thereafter, he had pressed her mouth and switched off the lights and had forcibly taken off her clothes and had committed rape upon her. Thereafter, he had run away from the spot. He had also threatened to kill her in case she will disclose the same to her father. The victim did not disclose the incident to her father on that day, however, on 05.07.2017, she narrated the incident to her father and thereafter, the present FIR was registered on the complaint of the victim. After completion of investigation, chargesheet in this case was filed and charges were framed.

3. Learned counsel for the petitioner states that an application seeking recall of witnesses i.e. PW-1 and PW-2 had been moved on behalf of accused/petitioner but the same was erroneously dismissed by the learned Trial Court vide order dated 11.08.2023. It is argued that the previous counsel had not effectively cross-examined the witnesses and certain questions had not been put to the witnesses which are crucial for the defence of the accused. It is stated that it will cause grave prejudice to the accused in case permission is not granted to recall the witnesses for further cross-examination.

4. Learned APP for the State, on the other hand, has opposed the present petition and states that more than 13 witnesses have already been examined in this case,the prosecution evidence has been closed and the case is listed for recording the statement of the accused. It is also stated that the present petition has been filed only to delay the trial proceedings. It is further stated that the previous counsel has crossexamined both the witnesses at length and merely a change of counsel cannot be a ground for recalling witnesses, especially in cases of sexual assault under POCSO Act.

5. This Court has heard arguments addressed on behalf of both the parties and has perused the material on record.

6. A perusal of record reveals that there are specific allegations levelled in the FIR that the present petitioner/accused had entered the house of the victim at night and had closed the door of the house, and thereafter, he committed rape upon the victim, who was a minor i.e. 13 years of age at the time of incident. The testimony of PW-1 i.e. the victim was recorded on 03.05.2018 and she was cross-examined on the same day, and the testimony of PW-2 i.e. the aunt of victim was recorded on 25.07.2018 and she was also cross-examined on the same day by the learned counsel for the accused.

7. Five years thereafter, the accused/petitioner had moved an application under Section 311 of Cr.P.C. before the learned Trial Court for recalling of PW-1 and PW-2 on the ground that previous counsel for the accused had not conducted the cross-examination of these witnesses properly. The said application was dismissed by the learned Trial Court vide impugned order dated 11.08.2023, which reads as under: “ This is an application u/s 311 Cr.P.C., moved on behalf of accused/applicant for recalling of witnesses i.e. PWI and PW[2]. Arguments on the aforesaid application heard. It is submitted by Ld. Counsel for accused/applicant that PWI/victim and PW2/Bua of victim have already been examined, cross examined by the previous counsel, but vital questions were not put to the aforesaid witnesses. It is further contended that the accused has now changed his counsel and certain vital questions are required to be put from PWI and PW[2]. It is further submitted by the Ld. Counsel for accused that accused is facing serious charges under the provisions of POCSO Act and if these witnesses are not recalled for further cross examination, this would amount to no defence resulting in grave prejudice to the accused. Hence, Ld. Counsel for accused has prayed for recalling of PWI and PW[2] for the purpose of cross examination. Ld. Substitute Special PP for the State has vehemently opposed the present application stating that since 13 witnesses have already been examined and cross examined in this case and matter is now fixed for recording of statement of accused under section 313 Cr.P.C., recalling of witnesses i.c. PWI/victim and PW2/Bua of victim would necessarily cause harassment to them and would also delay the trial. Submissions made on behalf of the parties are taken into consideration. Record perused. Perusal of record shows that testimony of PWI/victim was recorded on 03.05.2018 and testimony of PW2/Bua of victim was recorded on 25.07.2018. Perusal of record further shows that both these witnesses have been cross examined at length by Ld Defence counsel. Record further reveals that since the beginning of trial, accused kept on changing his counsel and the accused cannot take it as a matter of right to ask for recalling of Witnesses as and when he changes his counsel. It is pertinent to mention here that present case pertains to the year 2017 and the prosecution evidence have been closed in this case vide order dated 25.07.2023 and then the matter was adjourned for recording statement of accused under section 313 Cr.P.C. in these circumstances, recalling of PWI/victim and PW2/Bua of victim at this stage for the purpose of further cross examination when both these witnesses have already been cross examined at length way back in the year 2018 would certainly be a cause of unnecessary harassment to the witnesses. In view of my above discussion I do not find any merits in the present application and, hence the same is hereby dismissed. Application stands disposed of accordingly…”

8. This Court notes that the FIR in this case was registered in the year 2017.The victim i.e. PW-1 was examined and cross-examined on 03.05.2018and the paternal aunt of the victim i.e. PW-2 was examined and cross-examined on 25.07.2018, i.e. more than five years ago. Thereafter, 11 more witnesses were examined by the prosecution and evidence could be closed only on 25.07.2023 i.e. after about six years of registration of the present FIR. During this period of time, no application was moved on behalf of petitioner/accused between the period from July, 2018 till August, 2023 for recalling the witnesses. It is only after five years of recording of the testimonies of PW-1 and PW-2, that the application seeking re-call of witnesses has been moved and that too on the ground that the previous counsel had not properly cross-examined the witnesses.

9. Considering the facts of the present case and the contentions raised before this Court, it shall be appropriate to take note of the observations of the Hon’ble Apex Court in case of State (NCT of Delhi) v. Shiv Kumar Yadav (2016) 2 SCC 402wherein it was held that mere incompetence of a previous counsel cannot be the ground to re-call a witness for examination and fairness of a trial was to be seen also from the lens of victim and society. The relevant observations on this aspect read as under: “11. It is further well settled that fairness of trial has to be seen not only from the point of view of the accused, but also from the point of view of the victim and the society. In the name of fair trial, the system cannot be held to ransom. The accused is entitled to be represented by a counsel of his choice, to be provided all relevant documents, to cross-examine the prosecution witnesses and to lead evidence in his defence. ***

15. While advancement of justice remains the prime object of law, it cannot be understood to mean 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. Taken to its logical end, the principle that a retrial must follow on every change of a counsel, can have serious consequences on conduct of trials and the criminal justice system. The 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 the victims, especially so, of heinous crimes, if they are required to repeatedly appear in court to face cross-examination... ***

29. We may now sup up our reasons for disapproving the view of the High Court in the present case: **

(vii) mere change of counsel cannot be ground to recall witness...”

10. However, in order to appreciate the contentions raised on behalf of petitioner, this Court has also gone through the testimony of PW-1 i.e. the victim. The cross-examination of PW-1 was conducted by the learned counsel for the petitioner at length and the questions pertaining to the incident in question and the defence of the accused have been put in the cross-examination to PW-1. Further, PW-2 who is the aunt of the victim has also been cross-examined by the defence counsel and the defence of the accused was put to her also.

11. In view of settled position of law, mere change of counsel cannot be a ground for recalling witnesses, especially in cases of sexual assault. The victim in this case at the time of incident was about 13 years of age, andcross-examining her again after 6 years of the incident will amount to making her go through an incident which would have traumatized her several times in the past during investigation as well as at the time of recording of her statement before the learned Trial Court.

12. It is also crucial to note that Section 33(5) of POCSO Act puts an embargo on the Special Courts to repeatedly call the victim to testify in the Court.