IMPORTANT POINT
The main legal point established is the importance of balancing the rights of the accused and the prosecutrix under Section 311 Cr.P.C. and Section 33(5) of the POCSO Act in ensuring a fair trial.

JUDGMENT

Jyoti Singh, J. (Oral)

1. Present petition has been filed by the Petitioner under Section 482 Cr.P.C. assailing an order dated 01.06.2022 passed by the learned Special Judge, POCSO Act, East District, Karkardooma Courts, whereby the Court has allowed the application of the accused under Section 311 Cr.P.C. recalling the Petitioner (PW-2) for cross-examination in case titled `State v. Harpal Singh', SC No.2152/2019 arising out of FIR No.157/2019 dated 27.04.2019 under Sections 376/354/506/509 IPC registered at PS: Pandav Nagar.

2. Pursuant to the production warrant issued by this Court, the accused/Respondent No.2 has been produced in custody.

3. Factual score to the extent necessary is that pursuant to a complaint lodged by the Petitioner and her younger sister, the present FIR was registered. As per the averments in the petition, charges were framed against the accused on 19.09.2019 and thereafter PW-1 and PW-2 were summoned for prosecution evidence on 19.12.2019. On the said date, PW-1 and PW-2 were present in Court, however, examination-in-chief of only PW-1 could be concluded and the matter was adjourned to 06.02.2020 for her cross examination and for examination-in-chief as well as cross-examination of PW-2. Both witnesses appeared on the said date, however, due to non production of the accused from judicial custody, the matter was adjourned to 24.02.2020. Courts were unable to function from 24.02.2020 to 15.02.2022 on account of Pandemic COVID-19.

4. It is further stated that PW-1 and PW-2 were again summoned for 15.02.2022 and were present on the said date but cross-examination of PW-1 could not be completed and was deferred to 15.03.2022 for further cross examination, on which date after conclusion of cross-examination, summons were issued for examination of PW-2 on 22.04.2022. On the said date, examination-in-chief of PW-2 concluded before lunch and though counsel for the accused sought adjournment for cross-examination, the request was declined by the Trial Court and he was directed to conclude the cross on the same day. Counsel for the accused failed to appear till 3.20 pm and the Trial Court closed the right of the accused to cross-examine the Petitioner. Counsel appeared thereafter and apprised the Court that he could not appear post lunch as he was held up in traffic and filed an application under Section 311 Cr.P.C. seeking recall of PW-2. Vide order dated 01.06.2022, the learned Trial Court allowed the application and relevant part of the order is as follows:

"5. It is unfortunate that legal aid counsel for the accused could not appear for cross examination of the witness as he was stuck in traffic jam. PW2 is a material witness of the Case. Although in normal circumstance PW2 could not have been recalled for further cross-examination but considering the fact that accused is in Judicial Custody and was provided legal aid counsel and legal aid counsel due to the reasons attributed to him did not cross-examine the witness and thus for the fault of the legal aid counsel, the accused could not be penalised.

6. In view of the above mentioned discussion, the application for recalling of PW2 is allowed subject to the condition that not more than one opportunity shall be granted to the accused to cross examine PW2. Legal Aid Counsel is directed to remain present in the first call before the court and shall continue to be present before the court till examination of PW2 is concluded on the date."

5. Assailing the order, learned counsel for the Petitioner submits that the impugned order demonstrates lack of consideration for the hardship faced by the minor victim. The order passed is contrary to the provisions of Section 33(5) of the Protection of Children from Sexual Offences Act, 2012 (`POCSO Act'), which provides that the Special Court shall ensure that the child is not called repeatedly to testify in Court. Being a special enactment, Section 33(5) of POCSO Act shall prevail over Section 311 Cr.P.C. and thus the exer