'Classic Case Of How System Operates & Delays Trial': Supreme Court While Allowing Accused To Recall Witness After Over 3 Years

The Supreme Court on Thursday (November 28) lamented systematic delays in trial after noting that the trial court illegally recorded the complainant's evidence in a POCSO case in the absence of the accused and his advocate and then both the trial court and the High Court rejected a recall application to allow the accused to cross-examine the complainant.

“This is a classic case that indicates how the system operates and trial is delayed…The trial court could not have recorded evidence of PW1 in the absence of the appellant and his advocate. After noting this illegality in the order dated 30.05.2023 the trial court rejected the application…This was a case where there was a clear prejudice to the appellant and therefore the trial court itself should have allowed the application”, the Court held.

A bench of Justice Abhay Oka and Justice Augustine George Masih further criticised the public prosecutor and the government lawyer for opposing the recall application before the trial court and the High Court respectively.

“Even the public prosecutor ought to have taken a fair stand and ought not to have objected to the application. It is a duty of the public prosecutor to ensure that the trial is conducted in a fair manner. The matter did not rest here. When 482 petition was heard by the High Court, the High Court has noted that the government advocate vehemently opposed the application. Even the High Court has missed the very important point that the evidence of PW1 was recorded in absence of the appellant and his advocate”, the Court observed.

The trial court closed the cross-examination of PW1 on July 27, 2021. The Supreme Court noted that the appellant's application to recall PW1 was made in May 2023, and due to procedural delays, the issue was being addressed in December 2024. “The result of all this is that now in December 2024, PW1 will have to be recalled for cross examination. This order we are passing 1 year 6 months after the appellant applied for recall”, the Court observed.

The Court set aside the orders of both the trial court and the High Court and directed the trial court to issue necessary summons to PW1 for cross-examination by the appellant's advocate on a date fixed by the trial court.

Background Facts

The case involves the appellant facing trial for the offences under Sections 363, 366, 368, and 376 of the IPC and Sections 3 and 4 of the POCSO Act. The chief examination of the complainant (father of the victim), listed as PW1, was done by the prosecution on February 15, 2021, during the COVID-19 pandemic. The examination was conducted through video conferencing, but the appellant's advocate was not present. Subsequently, the trial court closed the cross-examination of PW1 on July 27, 2021. Following this, other witnesses, PW2 and PW4, were also examined.

On May 16, 2023, the appellant filed an application under Section 311 of the CrPC to recall the complainant for cross-examination. However, on May 30, 2023, the trial court rejected this application, with the order noting that the public prosecutor opposed it. The appellant then approached the High Court under Section 482 of the CrPC, seeking to quash the trial court's order. The High Court also rejected this application, leading the appellant to approach the Supreme Court.

Case no. – Crl.A. No. 4856/2024

Case Title – Nadeem v. State of UP