Accused Cannot Suffer For Lawyer's Deficient Cross-Examination: Calcutta High Court Allows Recall Of Witnesses In POCSO Case

Observing that an accused cannot be made to suffer because of a “deficient, casual and cryptic” cross-examination conducted by his previous counsel, the Calcutta High Court (Circuit Bench at Port Blair) has set aside a trial court order refusing to recall prosecution witnesses in a POCSO case and permitted limited re-cross-examination to ensure a fair defence.

Justice Apurba Sinha Ray held that while courts must be cautious about recalling vulnerable witnesses in sexual offence cases, the right of the accused to effectively defend himself cannot be sacrificed, particularly where the earlier cross-examination appears inadequate and may prejudice the defence.

The revisionist, Shri Krishna Mohan Das, had challenged an order of the Special Judge (POCSO), North and Middle Andaman, rejecting his application to recall seven prosecution witnesses for re-cross-examination. The trial court had reasoned that recall of victims and witnesses in POCSO matters should be avoided unless absolutely essential and that a mere change of counsel or allegations of ineffective cross-examination could not justify reopening evidence.

Before the High Court, the petitioner contended that the case had a chequered history. He had earlier been convicted, but the conviction was set aside in appeal with a direction to freshly examine him under Section 313 CrPC and deliver a fresh judgment. After new counsel took charge, it was found that several key witnesses had not been properly cross-examined by the previous lawyer, prompting the application for recall.

The State opposed the plea, arguing that the defence cannot be allowed to fill lacunae in the prosecution's case and that the application was merely a delaying tactic.

However, after perusing the depositions, the High Court found substance in the accused's grievance. The Court noted that the cross-examination conducted on behalf of the defence appeared “deficient” and “casual,” and allowing such cryptic questioning to remain on record could seriously impair the accused's ability to put forth an effective defence.

The Court emphasised that although POCSO law provides special protection to child victims and vulnerable witnesses, each case must be judged on its own facts. It observed that the lapses of a lawyer should not cost the accused heavily and that ensuring competent legal representation is integral to a fair trial.

Holding that recall was “absolutely essential” for a proper defence, the Court set aside the impugned order and directed the trial court to permit re-cross-examination of the prosecution witnesses strictly on the specific points mentioned in the revisional application.

Accordingly, the criminal revision was allowed and the matter remitted to the Special Judge for compliance.

Case Title: Shri Krishna Mohan Das v. State

Case No: CRR/62/2025

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