The main legal point established in the judgment is the discretion of the court in permitting the recall of witnesses, particularly in cases involving child witnesses, and the importance of balancing the interests of justice with the protection of child witnesses from repeated appearances in court.

JUDGMENT ORAL

Manoj Kumar Ohri, J. - CRL.M.A. 2867/2020

1. Allowed, subject to all just exceptions.

2. Application is disposed of.

CRL.M.A. 2953/2020

1. 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.

2. 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.

3. The prayer sought in the application is vehemently opposed by learned APP for the State.

4. I have heard the learned counsels as well as gone through the Trial Court Record.

5. 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' (PW4), her younger brother 'R' (PW5), her mother 'B' (PW3) and her father 'M' (PW7).

6. The prosecution evidence began on 01.05.2015, when PW1 to PW5 were summoned. On the said day, apparently a strike call was given by the Bar, as urged on behalf of the appellant, and for that reason, a counsel appointed by the Bar had represented the appellant and cross- examined PW4 and PW5, instead of his privately engaged counsel. PW6 to PW8 were examined on the next day, when cross-examination of PW7 was also conducted by the learned counsel appointed by the Bar. Subsequently, on 05.05.2015, PW9 to PW11 were examined, when the appellant was again represented by the learned counsel appointed by the Bar.

7. This Court is constrained to note that the present case being one where the accused/appellant was facing a serious charge, which is punishable with RI for a minimum of 10 years and may extend to imprisonment for life, the Trial Court seemingly defeated the purpose of fair trial initially by not adjourning the matter to a suitable date when the appellant could be represented by a counsel of his choice. The right to be represented by a counsel of his/her own choice is constitutionally guaranteed to every accused and the conducting of the trial in the present case, while the accused/appellant was represented by a Bar-appointed counsel who only cross-examined 3 out of the total prosecution witnesses cited, prejudiced the case of the accused to say the least.

8. On 28.05.2015, the error however came to be rectified when an application filed on behalf of the appellant under Section 311 Cr.P.C seeking recall of PW3 to PW5, PW7 to PW9 and PW11 for their cross- examination was partially allowed. A perusal of the records would show that PW3, PW7 to PW9 and PW11 were permitted to be recalled and the appellant did not press the application with respect to PW4 and PW5. At this stage, the cross-examination of the recalled witnesses was conducted by the learned counsel appointed by the appellant.

9. Subsequently, the accused/appellant did not raise a grievance regarding cross-examination of the prosecution witnesses until the filing of the present application under Sections 391/311 Cr.P.C., pending adjudication of the appeal filed before this Court against the judgment of conviction dated 10.12.2019. Vide the application, the appellant again seeks to recall stated prosecution witnesses, on the ground that proper cross-examination did not take place.

10. Before proceeding further, be it noted that the scope of Section 311 Cr.P.C. has been considered by the Supreme Court at length in P. Sanjeeva Rao v. State of Andhra Pradesh reported as (2012) 7 SCC 56 and Natasha Singh v. Central Bureau of Investigation (State) reported as (2013) 5 SCC 741. From an overview of the decisions, it is discernible that the rejection/acc