Subsequent Counsel's Differing Opinion On Case No Ground To Recall Witness: Delhi High Court

The Delhi High Court has observed that different opinion of a subsequent counsel on how the case has to be prosecuted further is no ground to recall a witness under Section 311 of CrPC. “…the power under Section 311 of the CrPC cannot be exercised at such a belated stage merely on account of change in counsel. Different opinion of a subsequent counsel on how the case is to prosecuted cannot be a legal ground for recalling a witness,” Justice Amit Mahajan said.“If such arguments are allowed, the trial would be a never-ending endeavour since after every few months, a new lawyer with a different strategy would be engaged, who would like to cross examine the witnesses again,” the Court added. Section 311 of the Code grants any Court the power to summon any person as a witness, examine any person present, or recall and re-examine any person already examined at any stage of an inquiry, trial, or other proceeding.The Court made the observations while dismissing a plea moved by an accused in a POCSO case challenging a trial court order rejecting his application to recall the prosecution witnesses- the victim, her mother and the Junior Forensic Chemical Examiner for further examination. The said request was made on the ground that the previous counsel had not posed important questions to the said witnesses.The FIR was registered in 2018, when the victim was around 14 years of age. It was alleged that the at accused, the step father, had been sexually assaulting her since 2016. It was alleged that the accused had committed penetrative sexual assault on the victim. The petitioner had earlier been sent to jail in 2016 for committing sexual assault on the victim after which he was released on bail.It was the petitioner's case that the victim and her mother were not thoroughly examined and certain new facts had come to light when the counsel, who was engaged subsequently, interacted with him in jail.It was contended that questions in relation to the age of the victim, clothes or undergarments and the timeline of events were not put properly to the said witnesses.Rejecting the plea, the Court said that the Trial Court had rightly observed that recalling of the witnesses will only bring further trauma to the victim, that the DNA matched conclusively and no specific new facts were cited so as to recall the witnesses for re-examination.“Recalling of the witnesses, at this stage, after almost seven years of incident would only amount to further victimization of the child. The learned Trial Court also rightly observed that plea of the accused that no questions in respect of his clothes, exact events and age were put to the victim was unmerited,” the Court said.Title: GOVIND MANDAL v. STATE OF NCT OF DELHICitation: 2025 LiveLaw (Del) 1257Click here to read order

Subsequent Counsel's Differing Opinion On Case No Ground To Recall Witness: Delhi High Court

Nupur Thapliyal

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