Witness Can't Be Recalled In POCSO Cases Without Cogent Or Justifiable Reason: Delhi High Court

The Delhi High Court has observed that a witness in a POCSO case cannot be recalled if the application does not disclose any cogent or justifiable reason.

“Recalling a witness, especially in cases under the POCSO Act which are required to be tried expeditiously, cannot be permitted to be delayed by filing applications which disclose no cogent or justifiable reason for recalling such witnesses,” Justice Swarana Kanta Sharma said.

Referring to Section 348 of Bharatiya Nagarik Suraksha Sanhita, 2023, the Court said that the power to recall a witness must be exercised for a legitimate and lawful purpose and not as a means to fill lacunae in the prosecution or defence, or to prolong the trial proceedings unnecessarily.

“While the provision indeed grants the Court discretion to ensure that the truth is brought on record and justice is achieved, it must be invoked cautiously and sparingly, so as to prevent delays, frivolous applications, or any kind of misuse,” it added.

The Court dismissed a plea moved by an accused in a POCSO case challenging a trial court order dismissing his application to recall a prosecution witness- a doctor by profession.

The man was accused of repeatedly sexually assaulting a 13 year old girl to which she had conceived. 

The doctor in question had conducted the medical termination of pregnancy of the victim, sealed the samples of the fetus and had handed over them to the IO concerned.

The accused sought recalling of the witness stating that certain clarification was required, for which cross-examination of the witnesses was sought.

Rejecting the plea, Justice Sharma noted that neither in the plea nor during arguments the reasons necessitating such clarification was specified.

The Court said that that no single reason was given by the accused, except for a bald averment that certain clarifications regarding some discrepancies needed to be highlighted.

“Such a vague assertion, without specifying the nature of the discrepancies or their relevance to the just adjudication of the case, cannot constitute a sound ground for allowing an application under Section 348 of the BNSS, as the specific purpose of the provision is to enable the Court to summon or recall witnesses whose evidence appears essential for arriving at a just decision in the case,” the Court said.

It added that the trial court had rightly noted that the application for recall of witness was vague, bereft of particulars and aimed at recalling witnesses who had already been cross-examined at length, without disclosing any material basis for such recall.

“Permitting such an exercise would not only amount to allowing the defence to fill in lacunae but would also defeat the very objective of expeditious disposal of trials under the POCSO Act,” it said.

Title: MOHSIN KHAN v. STATE OF DELHI (THROUGH SHO PS NIHAL VIHAR)

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