The right to fair trial cannot mean unjustified repeated opportunities of cross-examination, and the case of the accused has to be meritorious for such relief to be granted.

JUDGMENT

Swarana Kanta Sharma, J. The instant petition has been filed by the petitioner under Section 482 of the Code of Criminal Procedure, 1973 (`Cr.P.C') for quashing of order dated 23.05.2023 passed by learned Additional Sessions Judge (FSTC), POCSO, North-West, Rohini Courts, New Delhi (`Trial Court') in Sessions Case 53715/2016 arising out of FIR bearing no. 669/2016, registered at Police Station Keshav Puram, Delhi for offences punishable under Sections 376/506 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 petitioner/accused had allegedly committed rape upon respondent no. 2/prosecutrix, following which, an FIR was registered on 20.10.2016. The examination-in-chief and cross-examination of the prosecutrix and of the complainant i.e. mother of the prosecutrix was concluded on 20.10.2018. Thereafter, on 30.08.2019, the doctor who had proved the contents of MLC was examined and discharged. The petitioner had moved an application under Section 311 Cr.P.C. seeking 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 leveled against the petitioner/accused. However, the same was dismissed by the learned Trial Court vide order dated 23.05.2023. Aggrieved by the same, the petitioner has approached this Court.

3. Learned counsel for the petitioner states that a bare perusal of the cross-examination of the prosecutrix would reveal that it was conducted in a routine manner, neglecting the gravity of the allegations leveled against the petitioner as no questions had been put to her in the entire cross-examination regarding the alleged incident i.e. the mode and manner in which it had taken place, to ascertain as to whether the incident had actually taken place or was just a cooked up story at the instance of the complainant/mother of prosecutrix. It is also stated that the mother of the prosecutrix also needs to be again cross-examined to ascertain as to how and when she had come to know that her daughter had gone missing, how she had searched for the prosecutrix, etc. It is also argued that the medical examination in this case was conducted and it is essential to ascertain whether there were any injuries or other symptoms on the body of the prosecutrix to corroborate the story of prosecution, therefore, the doctor concerned PW 9 be called for cross examination.

4. Learned APP for the State, on the other hand, argues that the witnesses were thoroughly examined and the prosecutrix was just seven years old at the time of the incident and nine years old when she was examined and cannot be subjected to the trauma of re-living the entire incident.

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

6. After going through the case file, this Court is of the opinion that there are specific allegations leveled in the FIR that the present petitioner/accused had taken the victim, who was a minor, to the roof of building and had committed sexual assault on her. The petitioner had moved an application before the learned Trial Court under Section 311 Cr.P.C. for recalling of the prosecutrix and the complainant i.e. the mother of prosecutrix as well as PW-9 i.e. doctor who had medically examined the victim.

7. The operative portion of the order impugned before this Court reads as under:

"By way of the present application, the recalling of PW4/victim and PWS/mother of the victim is being sought on the ground that the cross-examination which had been conducted earlier was conducted just for the sake of formality and no questions were put to the said witnesses to test the veracity of the alleged incident.

As per record, the victim was just 7 years old at the time of the incident and she was 9 years old when she was exa