Accused’s Right To Cross Examine Witness At More Higher Pedestal Under POCSO Act In View Of Harsh Punishment For Offences: Delhi High Court

The Delhi High Court has observed that the right of an accused to cross examine a witness is at a “higher pedestal” under the POCSO Act in view of the serious nature of offences and harsh punishment prescribed under the statute.

While granting an accused the opportunity to cross examine a prosecution witness in a POCSO case, Justice Tushar Rao Gedela observed:

“The offences are of a very serious in nature and considering the fact that the offences under POCSO Act prescribe very harsh punishment, it would not be out of place to hold that the right to cross examine would be all the more at a higher pedestal.”

The man is facing trial in an FIR registered in 2019 for the offences under Sections 354, 354A and 354D of Indian Penal Code and Section 12 of POCSO Act. 

He challenged an order passed by the trial court on January 03 dismissing his application seeking recall of a prosecution witness (PW1) for cross examination.

It was the accused’s case that PW1 is the main witness in the case and the denial of his right to cross examination would seriously prejudice his case and would also be violative the principals of natural justice.

On the other hand, it was submitted by the prosecution that a number of opportunities were afforded to the accused to conduct the cross examination despite which he did not avail the same.

It was also contended that the application seeking recall of the witness was filed by the accused with an inordinate delay of almost one year and in the meanwhile almost six other witnesses were examined.

Granting relief to the accused, the court observed: “There is no doubt that in offences relating to security of women are concerned, the criminal courts are under an obligation to ensure that the witnesses are not harassed. However, keeping in view the fact that under Section 29 of the POCSO Act, there is presumption which is against the petitioner (accused), which needs to be rebutted by way of proper opportunity to cross examine the witnesses. This right is indelible.”

Justice Gedela also said that though the accused had approached the trial court with his application seeking recall of the witness after an inordinate delay of one year, that by itself that may not be the reason for depriving him from cross examining PW1.

“In that view of this matter, this Court is of the considered opinion that the petitioner can be afforded an opportunity to cross examine PW1 on one single date.….The counsel is directed to present PW1 for cross examination by the petitioner on 07.08.2023. Petitioner shall ensure that the cross examination commences and is completed on 07.08.2023,” the court ordered.

It said that no further opportunity of any kind will be given or afforded to the accused other than on August 07. The court also said that the trial court will be at liberty to proceed with the recording of the evidence of the remaining witnesses.

“The petitioner shall pay a sum of Rs.10,000/- to the witness as a pre condition for the opportunity granted today to be paid within one week from today. If there is any infraction in the above conditions, the opportunity so granted today, shall automatically stand vacated,” Justice Gedela said.

Title: SUSHIL KUMAR v. THE STATE GNCTD THROUGH SHO & ANR.

Citation: 2023 LiveLaw (Del) 593

Click Here To Read Order