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Witnesses cannot be routinely recalled on the ground that cross-examination was not proper for reasons attributable to a counsel: High Court of Delhi

The rejection or acceptance of an application filed under Section 311 Cr.P.C. is closely linked with guaranteeing a fair trial not only to the accused but also to the victims, witnesses and society at large. Witnesses cannot be allowed to be routinely recalled on the ground that cross-examination was not proper for reasons attributable to a counsel. Sufficient and cogent reasons must exist for a Court to permit recall of witnesses, particularly in cases of heinous offences and the same was upheld by High Court of Delhi through the learned bench led by Justice Manoj Kumar Ohri in the case of AMARNATH TIWARI vs. STATE (NCT OF DELHI) [CRL.A. 155/2020] on 24.01.2022.

The facts of the case are that the appellant was charged for the commission of offence under Section 5(m) of the POCSO Act. The appellant pleaded not guilty in the trial. To support its case, the prosecution cited a total of 13 witnesses including the child victim. Subsequently, the accused did not raise a grievance regarding cross-examination of the prosecution witnesses until the filing of the present application.

The present application has been filed by the appellant under Section 391 read with Section 311 Cr.P.C as he seeks to recall stated prosecution witnesses, on the ground that proper cross-examination did not take place.

The appellant’s counsel contended that during the trial, the witnesses could not be effectively cross-examined resulting in serious prejudice to the appellant as on the said day, apparently a strike call was given by the Bar and for that reason a counsel who was appointed by the Bar had represented the appellant and cross-examined witnesses instead of his privately engaged counsel. Since proper cross-examination did not take place, the appellant seeks to recall and cross-examine the witnesses.

In view of the facts and circumstances of the cases, Court was of the opinion that the present application lacks merit and is an abuse of the process of the Court as there is nothing on record to indicate that the two witnesses were not cross-examined at length or on material aspects. and therefore, the application was dismissed.

The Court observed that, “it is discernible that the rejection or acceptance of an application filed under Section 311 Cr.P.C. is closely linked with guaranteeing a fair trial not only to the accused but also to the victims, witnesses and society at large. Witnesses cannot be allowed to be routinely recalled on the ground that cross-examination was not proper for reasons attributable to a counsel. Sufficient and cogent reasons must exist for a Court to permit recall of witnesses, particularly in cases of heinous offences”.

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Judgment reviewed by – Shristi Suman

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