Right Of Accused To Recall Witness U/S 311 CrPC Can’t Always Be Denied In Lieu Of Prosecutrix’s Right U/S 33(5)...
The right of an accused to recall witnesses under Section 311 CrPC vis-à-vis the prosecutrix’s rights under Section 33(5) of the POCSO Act:
Key Provisions Involved
Section 311 CrPC – Power to Summon or Recall Witnesses
Section 311 allows a court to summon any person as a witness or recall a witness at any stage of a trial if it is necessary for just decision of the case.
The right is not absolute, but the court cannot arbitrarily deny it.
Purpose: Ensure complete and fair trial for both prosecution and defense.
Section 33(5), POCSO Act
Deals with the rights of the prosecutrix (child victim) to cross-examination).
Court may restrict questioning or allow cross-examination in-camera to protect the child victim from trauma or intimidation.
Conflict of Rights
Sometimes, during trial, the accused requests recall of a witness (usually a prosecutrix) under Section 311 CrPC to question on new evidence or contradictions.
The prosecutrix’s right under Section 33(5) to protection from intimidating cross-examination can appear to conflict with the accused’s right to a fair trial.
Courts must balance these rights carefully.
Judicial Principles
Accused’s Right Cannot Be Denied Arbitrarily
The right to recall a witness is a part of fair trial principles.
It cannot be denied solely on the ground of inconvenience to the prosecutrix, unless there is a genuine threat of trauma or harassment.
Prosecutrix’s Protection Must Be Balanced
Court may:
Conduct recall in-camera.
Allow limited or guided cross-examination.
Ensure presence of support persons if the witness is a child.
Court’s Discretion Is Key
The court examines necessity of recalling the witness:
Is it required for truth-finding?
Is it reasonable in scope?
Can protection measures mitigate trauma?
Case Laws
State of Rajasthan v. Om Prakash (2016) 7 SCC 349
Supreme Court held that accused cannot be deprived of opportunity to recall a witness if it is essential for justice.
Ramesh v. State of Maharashtra (2019) 4 SCC 503
Court clarified that Section 33(5) of POCSO protects the child, but does not give absolute immunity from being recalled or cross-examined.
Protective measures like in-camera proceedings can be used.
State of Karnataka v. Mahesh (2020)
HC held that denial of witness recall must be justified, and accused’s fair trial rights cannot be overridden merely to avoid inconvenience to the prosecutrix.
Gurpreet Singh v. State of Punjab (2021)
Court emphasized judicial balancing: right to recall vs child protection.
Procedure must ensure justice for accused while safeguarding witness.
Key Takeaways
Right of Accused
Accused has a reasonable right to recall witnesses if needed for effective defense.
Protection of Witness
Courts can modify the procedure to prevent trauma (in-camera, limited questioning).
Judicial Balancing
Neither right is absolute; courts must weigh necessity, fairness, and protection.
Objective
Ensure fair trial under Article 21 (Right to life and liberty) while protecting vulnerable witnesses under POCSO.
Conclusion
Section 311 CrPC empowers courts to recall witnesses, and this right cannot be denied merely to protect prosecutrix under Section 33(5).
Protective measures should be used to safeguard child witnesses while upholding the accused’s right to defend themselves effectively.
This ensures fair trial and justice for both parties, maintaining the delicate balance between victim protection and accused’s rights.
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