Vulnerable Witnesses Must Be Protected From Unnecessary Re-Traumatisation In Sensitive Cases: Delhi High Court

While dealing with a case under the POCSO Act, the Delhi High Court has observed that vulnerable witnesses must be protected from unnecessary re-traumatization, particularly in sensitive cases.

Emphasising that recalling a victim for additional cross-examination is not a matter to be taken lightly, Justice Amit Mahajan said:

“When a victim, especially a child or someone of tender age, is recalled to the stand, they are compelled to relive the traumatic events associated with the incident. Such repeated questioning can result in significant emotional distress and further psychological harm.”

“The legal system aims to balance the rights of the accused with the need to protect vulnerable witnesses from unnecessary re-traumatization, particularly in sensitive cases,” the court said.

Justice Mahajan made the observations while dismissing the plea moved by an accused challenging the trial court order rejected his application seeking recall of the victim for cross-examination in the POCSO case.

It was the accused's case that the victim was examined on July 07, 2022, when she was only 13 years old and was duly cross-examined by the legal aid counsel on the same day. The application was filed before the trial court in October last year.

It was submitted that the cross-examination of the victim by the Legal-Aid Counsel was not conducted properly as neither any questions with respect to the alleged incident were asked nor any questions as to the date and time of the alleged incident had been put to the victim.

The prosecution opposed the plea and said that the right to cross-examine the prosecutrix was closed on the same day when her re-examination was conducted.

Rejecting the plea, the court noted that the application was filed before the trial court after an extended delay of about 15 months from the examination of the victim.

The court observed that nothing was pleaded which would justify the recall of witnesses or which was essential for a just decision in the case.

“Vague averments have been made that recall of the witnesses is required as the petitioner failed to examine certain important aspects that were vital to the case. Allowing such delayed applications to address the alleged lacuna which are left in the examination would undermine the fairness and efficiency of the trial process, which should ideally be swift and conclusive to uphold principles of justice,” the court said.

Noting that the petition was filed almost 11 months after the impugned order was passed, the court said while it is within a litigant's rights to change their legal counsel, the same cannot be used as a strategy to compensate for gaps in the defence.

“If such a reasoning were permitted, it would set a precedent where, after a certain amount of time has passed, a new counsel could be appointed to represent the accused, potentially re-opening proceedings by requesting to recall the victim for further examination. This would essentially allow the accused to continually seek to fill perceived gaps, thereby prolonging the trial indefinitely,” the court said.

Justice Mahajan concluded that the mere averment that re-calling the victim was necessary for ensuring a fair trial, merely because of a change in counsel, was insufficient in the absence of any cogent reasons.

Title: SUDARSHAN v. THE STATE (GOVT. OF NCT OF DELHI) & ANR.

Citation: 2024 LiveLaw (Del) 1046

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