The Delhi High Court has refused to recall a child/victim with a mental disability of 50% for cross-examination in a sexual assault case.

The bench of Justice Poonam A. Bamba observed that the application for recalling of child/victim was filed approximately after three years of child's examination.

The Court noted that there is no averment in the petition explaining such a delay in filing the application under Section 311 Criminal Procedure Code.

The Court also noted that "Sub-Section (5) of Section 33 POCSO Act, directs that the Special Court shall ensure that the child is not called repeatedly to testify in the court."

Advocates Faisal Nassem and Jitender Choudhary appeared for the petitioner-accused whereas APP Priyanka Dalal appeared for the State.

In this case, petitioner's application under Section 311 Cr.P.C for recalling of child-victim for her cross-examination was dismissed by the Trial Court.

The petitioner challenged the impugned order inter alia on the grounds that the Trial Court failed to appreciate that the revisionist/accused was represented by a proxy counsel on the given day and could not properly cross-examine the child on material particulars.

The Court noted that on perusal of the Order of the day on which the victim was cross-examined by proxy counsel for the petitioner, it showed that the counsel did not make any submission that she was unable to cross examine the child.

"…it is evident that the Ld. counsel did not take any plea that she was not conversant with the facts or was unable to cross examine the witness. If it was felt that the proxy counsel was not capable of cross examining/had not cross examined the witness on material particulars, the learned counsel for the petitioner did not take any steps for recalling of PW-1 for three long years.", the Court observed.

The Court further noted that admittedly, the child/victim is a special child with a mental disability of 50 per cent.

"Considering the above facts and circumstances in entirety and the reasons recorded hereinabove, exercise of discretion under Section 311 Cr.P.C is not called for in the present case.", the Court held while dismissing the petition.

Cause Title- Phool Singh @Phool Chand v. State (NCT of Delhi)

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