The trial court's discretion to deny recall of a child victim for cross-examination was upheld, prioritizing the child's protection under Section 33(5) of the POCSO Act and confirming that the accused had received a fair trial opportunity.

JUDGMENT

1. Present petition has been filed assailing the order dated 04.03.2020 passed by the Trial Court whereby the Petitioner's application for recall of the child victim `A' who testified as PW-1 was dismissed.

2. Briefly put the narrative of facts as averred in the petition are that on 25.12.2018 an FIR was registered under Sections 376, 342 IPC and Section 6 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as `POCSO Act') for an alleged incident that occurred on 24.12.2018 between 3:00 pm to 4:00 pm. The allegations in the FIR were that the child victim `A' aged 6 years, after coming back from school was playing with her friend `B' when a person called Chhotu Bhaiyya, who was residing in the house of `B', took her to a room, in her Chachi's house and closed the room and disrobed himself. He then came near `A' and disrobed her and committed sexual assault. Friend `B' in the meantime knocked at the door and Chhotu Bhaiyya opened the door, upon which `A' ran out of the room towards the upper floor. Chhotu Bhaiyya told `A' to come down but `A' went to her mother and narrated the incident, who in turn told her husband and they then went to the Police Station and lodged a complaint.

3. As per the FIR inquiry was made by the police from `A' and her statement was recorded in the presence of the mother. `A' was then taken to the hospital where her counseling was done and thereafter the FIR was registered.

4. Charge sheet was subsequently filed on 23.02.2019 and on 28.05.2019 charges were framed under Sections 376 AB, 342 IPC and Section 6 read with Section 5 (m) of POCSO Act. Between 05.08.2019 and 09.08.2019 deposition of PW-1 i.e. `A' was recorded. On 09.08.2019 counsel for the Petitioner filed an application alleging prejudice, as according to him he was prevented from effectively cross examining the witness by putting questions to her to test her memory and to bring out material omissions and contradictions. The application is still pending.

5. On 03.09.2019 Petitioner preferred an application seeking recall of PW-1 on the ground that the counsel was not allowed to cross examine and confront PW-1 with her earlier statements. On 20.02.2020 testimony of the mother being PW-3 was recorded. The application for recall was heard on 04.03.2020 and was rejected vide the impugned order. It is this order rejecting the application for recall which is the genesis of the present petition.

6. Learned counsel for the Petitioner assails the impugned order by contending that the trial Court's refusal to recall PW-1 for effective cross examination under Section 311 Cr.P.C. violates the provisions of the Section which provides that any Court may at any stage of an inquiry, trial or other proceeding under the Cr.P.C. summon or examine or recall and re-examine any person already examined if his evidence appears to be essential for the just decision of the case. He argues that the order impugned violates the law laid down in State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402; Shri Vimal Khanna v. State, 2018 SCC Online Del 11796 and Deva v. The State of Karnataka in Crl. Petition 201325/2019. In Vimal Khanna (supra) the Court has held that denial of opportunity to cross examine the witnesses violates the Constitutional guarantee to an accused and vitiates the trial. The judgment was followed in Mohd. Gulzar v. The State (GNCTD), 2018(4) JCC 2291 wherein after recording that the counsel for the accused was not present on three consecutive dates to cross examine the witness, the Court held that since the right of cross examination is a valuable right, the child's right under Section 33 (5) of POCSO Act has to be balanced with the aforesaid rights of the accused and thus permitted one more opportunity to the accused to cross examine the alleged victim. It is argued that in Deva (supra) the Court was clearly of the view that the power to recall a witness at the instance of either party to ensure justice