A court may refuse to recall a witness for cross-examination if the application is made after significant delays, particularly under special legislation designed to protect vulnerable witnesses of child abuse.

JUDGMENT

Poonam A. Bamba, J. This is a petition under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C) seeking setting aside of order dated 10.05.2022 (`impugned order' in short) passed by the court of Learned ASJ-01 (POCSO) New Delhi District, Patiala House Court in Sessions Case No. 209/2018 titled as "State Vs Pool Singh @ Phool Chand" arising out of FIR No. 145/2018, under Section 354 of the Indian Penal Code, 1860 (IPC) & 9(K)/10 POCSO Act, PS Vasant Vihar, whereby petitioner's application under Section 311 Cr.P.C for recalling of PW-1/victim for her cross examination, was dismissed.

2.0. The facts relevant for disposal of this revision petition are that the present FIR came to be registered on the complaint of the petitioner's sister. The complainant stated that on 06.02.2018 at about 4 pm, she had left the house along with her younger daughter to bring ration. When she returned home, her daughter `S' told that her mama (maternal uncle)/petitioner had come in her absence and gave Rs. 100 to her father and sent him to the market to bring some eatables. Thereafter, finding her alone, the petitioner had touched her breasts and when she objected to the same and told him that she will inform her mother, he ran away.

2.1. After filing of charge sheet, the victim `S' was cross examined and discharged on 30.05.2019. Other witnesses PW-2 & 3 (parents of the victim girl) have also been examined. Subsequently, on 10.05.2022, the petitioner filed an application under Section 311 Cr.P.C praying for recalling of victim `S'/PW-1 for her cross examination pleading that main counsel was not present on the given day and the proxy counsel could not properly cross examine the witness/PW-1. Therefore, her recalling is necessary. Said application was dismissed by the Learned ASJ-01 vide impugned order dated 10.05.2022.

3.0. The petitioner also challenged the impugned order inter alia on the grounds that the learned Trial Court failed to appreciate that the revisionist/accused was represented by a proxy counsel on the given day and could not properly cross examine PW-1 on material particulars ; Learned trial court did not also appreciate that the petitioner faces a minimum imprisonment of five years which may extend to seven years, in case convicted; and if the witness is not allowed to be recalled to be cross examined, it shall defeat the petitioner's right to fair trial.

3.1. Learned counsel also argued that the petitioner undertakes to complete PW-1's cross examination on a single date of hearing, if given an opportunity.

4.0. On the other hand, the Learned Prosecutor strongly opposed this petition seeking its dismissal with cost. It is submitted that the victim/PW-1 was cross examined in May 2019 and the application for recalling her was filed nearly after three years of her examination ; and even after the parents of the victim i.e., PW-2 and PW-3 were examined. Nothing prevented the petitioner to take immediate steps if he was so aggrieved. Such belated application clearly shows that the petitioner after examination of other witnesses, is now attempting to fill in the loopholes, which cannot be allowed. More so, in view of the serious allegations against the petitioner.

4.1. Ld. Prosecutor also submitted that the victim is a special child with mental disability of 50 per cent. Thus, the Learned ASJ rightly dismissed the petitioner's application considering these facts and also taking into account that the POCSO Act requires that the child witness be not called repeatedly to testify in the Court. Ld. Prosecutor also submitted that the possibility of PW-2 and PW-3, sister and brother-in-law of the petitioner (and parents of the victim), being influenced can not be ruled out and that was the reason, the petitioner waited for the conclusion of their examination before filing the application for recalling of victim/PW-1.

5.0. I have duly considered the submissions made by both the sides.

6.0. It would be pertinent to refer