LI Network
Published on: 09 August 2023 at 12:30 IST
The Delhi High Court has underscored the significance of enacting and applying laws, even if there is potential for their misuse.
The court emphasized that the legislature should not refrain from enacting laws, and the judiciary should not abstain from applying them, solely due to the possibility of misuse.
Justice Swarana Kanta Sharma led the bench that handled a petition seeking to annul an order issued by the Trial Court in a case involving charges under Sections 376/506 of the Indian Penal Code (IPC) and Section 6 of the Protection of Children from Sexual Offences (POCSO) Act.
The petitioner, accused of committing rape on the prosecutrix, had finished cross-examination of the victim and her mother. Subsequently, the petitioner moved an application under Section 311 of the Criminal Procedure Code (Cr.P.C.) to recall the witnesses, alleging inadequate cross-examination. However, this application was dismissed by the Trial Court.
The High Court noted that while the provisions of Section 33(5) of the POCSO Act do not constitute an absolute prohibition, a balance between rights needs to be maintained. The court highlighted that the term “called repeatedly” in Section 33(5) of the POCSO Act is crucial.
The bench stated, “Any law, whether gender-based or not, has the potential of being misused. However, only because laws can be misused, the legislature cannot stop enacting laws nor judiciary can stop applying such laws since they have been enacted to curb the larger menace of commission of such offences and getting justice to genuine victims.”
The court acknowledged the paramount right to a fair trial for both the accused and the complainant. It noted that children subjected to sexual assault may avoid reporting such incidents due to the fear of being incessantly harassed through court proceedings.
While recognizing the importance of fair trial for the accused, the court clarified that fair trial should not imply unjustified repetitive cross-examinations.
The bench emphasized that the relief sought by the accused must have merit, taking into account the gravity of the case.
Striking a balance between the right to a fair trial and the intention of legislation, the court stressed the duty of the judiciary to remain sensitive to the trauma of sexual assault victims, particularly minors.
The court ruled that victims and witnesses should not be recalled to relive the ordeal, solely because the new counsel is unsatisfied with the prior cross-examination.
Ultimately, the bench dismissed the petition, asserting that the courts must ensure an expedited and fair trial while curbing the misuse of such applications to prolong proceedings.
