Delhi High Court Grants Limited Opportunity for Cross-Examination in POCSO Case, Upholding Right to Fair Trial

In a recent judgment, the Delhi High Court has upheld the right to a fair trial by granting a limited opportunity for cross-examination in a case involving offenses under the Protection of Children from Sexual Offenses (POCSO) Act. The judgment, delivered by Hon'ble Mr. Justice Tushar Rao Gedela, highlights the significance of cross-examination in rebutting the presumption under Section 29 of the POCSO Act and ensuring witness protection.

The petitioner, represented by Mr. Devendra Kumar, Advocate, sought to set aside an order dismissing their application under Section 311 of the Criminal Procedure Code (Cr.P.C.) for the recall of Prosecution Witness 1 (PW1) for cross-examination. The court acknowledged the duty of criminal courts to protect witnesses, especially in cases relating to women's security, but emphasized the indelible right to cross-examination as an essential aspect of a fair trial.

Justice Gedela stated, "The right to cross-examine would be all the more at a higher pedestal in cases of such serious nature, considering the harsh punishments prescribed under the POCSO Act" (Para 12). The court recognized that although the petitioner had filed the application with a significant delay of one year, this alone should not be a ground for denying the opportunity to cross-examine PW1.

The High Court granted the petitioner a single date, August 7, 2023, for the cross-examination of PW1, with a strict directive that no further opportunities would be provided. The trial court was permitted to proceed with the recording of evidence of other witnesses after the cross-examination.

As a precondition for the granted opportunity, the petitioner was ordered to pay a sum of Rs. 10,000/- to the witness within one week. Any violation of the conditions would result in the automatic vacation of the opportunity.

This judgment serves as a reminder of the importance of the right to cross-examination in ensuring a fair trial, particularly in cases involving offenses under the POCSO Act. It strikes a balance between witness protection and the accused's right to challenge the prosecution's case through cross-examination.

Date of Decision: July 4, 2023

SUSHIL KUMAR  vs STATE GNCTD THROUGH SHO & ANR