The main legal point established in the judgment is the sensitivity and caution required in exercising the discretion to re-summon a witness, especially in cases of sexual assault, balancing the victim's right to a fair trial and the accused's right to a fair trial, and highlighting the potential trauma of repeated cross-examination. The judgment also emphasized that mere change of counsel cannot be a ground for recalling witnesses, especially in cases of sexual assault.

JUDGMENT

Swarana Kanta Sharma, J.

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 cross- examined 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 PW2. Arguments on the aforesaid application heard. It is submitted by Ld. Cou