CRL.REV.P. 913/2023

Page 1 of 9

$~

*

IN THE HIGH COURT OF DELHI AT NEW DELHI

%

Reserved on: 01.09.2023

Pronounced on: 04.09.2023

+

CRL.REV.P. 913/2023 & CRL.M.A. 23661/2023

VISHWA PRATAP @ BOPY

..... Petitioner

Through:

Mr.

Randheer

Singh,

Advocate

versus

THE STATE GOVT OF NCT OF DELHI THROUGH SHO P

S BHALSWA DAIRY

..... Respondent

Through:

Mr. Naresh Kumar Chahar,

APP for the State with SI

Sushila (Special Branch) and

SI Aarti, P.S. Bhalswa Dairy,

Delhi

CORAM:

HON'BLE MS. JUSTICE SWARANA KANTA SHARMA

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

Digitally Signed

By:ZEENAT PRAVEEN

Signing Date:05.09.2023

11:08:15

Signature Not Verified

CRL.REV.P. 913/2023

Page 2 of 9

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.

Digitally Signed

By:ZEENAT PRAVEEN

Signing Date:05.09.2023

11:08:15

Signature Not Verified

CRL.REV.P. 913/2023

Page 3 of 9

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. t