Ritesh Kumar Murti vs State (GNCT of Delhi)

S.P.Garg, J.(Oral) - Present Revision Petition has been preferred by the petitioner to challenge the legality and correctness of an order dated 15.02.2016 by which the application under Section 311 Cr.P.C. to recall the prosecutrix for cross-examination was rejected. Status report is on record.

I have heard the learned counsel for the parties and have examined the file. The petitioner is facing trial under Section 376 IPC and Section 6 POCSO Act. The prosecutrix ''X'' (assumed name) was examined on 3.08.2015. Admitted position is that on that day, lawyers were on strike. A proxy Counsel appointed by the Bar to get adjournments had cross Crl. examined the prosecutrix. Apparently, he had not been authorised by the petitioner/accused to conduct cross-examination on his behalf. The petitioner was, thus, deprived of reasonable opportunity to cross-examine the witness through the lawyer to whom he had engaged. PW-1 was a material prosecution witness. The Trial Court was subsequently moved to recall the prosecutrix. However, the request was declined. The case is listed for recording statement of the accused on 4.6.2016.

Since the prosecutrix is a material witness and her cross-examination by the authorised counsel of the petitioner is necessary for the just decision of the case, PW-1 needs to be recalled for further cross-examination. For inconvenience to the prosecutrix being a child aged around five years, the petitioner can be burdened with costs of Rs. 20,000/- to be paid to the prosecutrix/her parents on the date of her examination.

Accordingly, the revision petition filed by the petitioner is allowed and the prosecutrix (PW-1) is ordered to be recalled for cross-examination. The petitioner be granted one effective opportunity to cross-examine the prosecutrix. He shall pay Rs. 20,000/- as costs to her or her parents.

Trial Court record (if any) be sent back forthwith along with the copy of the order.