NEW DELHI: The Supreme Court has held that a rape survivor should not be harassed with repeated calls to appear in court during trial proceedings for cross examination. A bench of Justices Dipankar Datta and Satish Chandra Sharma quashed an order passed by Tripura HC which had allowed the accused’s plea to recall the survivor for examination four years after she was already cross-examined. It said the prosecutrix had already been subjected to the ordeal of deposition and cross-examination on four separate occasions before the trial court, in addition to having her statement recorded during the investigation and before the magistrate under Section 164 of the CrPC and it was harsh to recall her four years after she was cross-examined.“Directing recall would inflict further and unjustifiable hardship upon the prosecutrix. The witnesses cannot be expected to face the hardship of appearing in court repeatedly, particularly in sensitive cases. It can result in undue hardship for the victims, especially so of heinous crimes, if they are required to repeatedly appear in court to face cross-examination,” SC said. HC had passed the order to recall a survivor under Section 311 of Criminal Procedure Code on a plea filed by the accused. Noting that the application was filed after four years from the completion of her cross-examination of the prosecutrix and sufficient ground doesn’t exist for recalling the prosecutrix after such a prolonged delay, the court allowed the plea of state govt which challenged the HC order. Section 311 of the CrPC states that “any court may, at any stage of any inquiry, trial or other proceeding under this code, summon any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.The court said the power conferred under Section 311 undoubtedly is wide, and such power is required to be exercised sparingly and in a judicious manner, and not arbitrarily. “Mere observation that recall was necessary for ensuring a fair trial is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course, and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily,” it said, while citing previous orders.In this case, the prosecutrix was first examined in chief and cross-examined on June 4, 2018, followed by further cross-examination in Aug 2018. Thereafter, the prosecution filed an application under Section 311 CrPC seeking recall and re-examination of the prosecutrix. She was further examined and re-cross-examined in Aug and Nov 2019. Four years later, the accused sought to recall her in the witness box, which was rejected by the trial court but allowed by HC. SC, however, has now quashed the HC order.
