Introduction:
In the case of Mohsin Khan v. State of Delhi (Through SHO PS Nihal Vihar), the Delhi High Court was tasked with examining whether an accused in a case under the Protection of Children from Sexual Offences Act, 2012 (POCSO) could recall a prosecution witness without disclosing any cogent or justifiable reason. The matter arose from a petition filed by the accused challenging a trial court’s rejection of his application to recall a doctor who had already testified and been cross-examined. The accused, Mohsin Khan, was charged with repeatedly sexually assaulting a 13-year-old girl, as a result of which she conceived. The concerned doctor had conducted the medical termination of pregnancy, sealed the fetus samples, and handed them over to the investigating officer. The accused sought the recall of this witness under Section 348 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), citing a need for clarifications, though he failed to specify the nature of such discrepancies. Justice Swarana Kanta Sharma of the Delhi High Court, while dismissing the plea, stressed the importance of preventing misuse of recall provisions in POCSO trials, which are meant to be decided expeditiously.
Arguments on Behalf of the Petitioner:
The petitioner, Mohsin Khan, through his counsel, argued that the trial court erred in dismissing his application to recall the doctor who had played a pivotal role in the investigation process. According to him, the testimony of the doctor carried significant weight, as she had not only carried out the medical termination of the pregnancy but also sealed and handed over crucial biological evidence to the investigating officer. The petitioner claimed that there were discrepancies in the evidence which warranted clarification, and only by recalling the doctor could those aspects be properly addressed through cross-examination. His counsel submitted that the objective behind seeking recall was not to delay the trial or harass the witness but to ensure that the accused received a fair trial, a constitutional guarantee under Article 21 of the Constitution of India.
Further, it was argued that Section 348 of the BNSS allows the court discretion to recall a witness if their testimony is essential to arriving at a just decision. The petitioner contended that his application fell within the scope of this provision since the medical evidence formed a critical link in establishing the chain of circumstances against him. To deny him the opportunity to cross-examine further would, in his view, result in grave prejudice to his defence. The counsel also emphasized that criminal trials are not to be seen as mere mechanical processes but as judicial proceedings where the liberty of an individual is at stake. Therefore, according to the petitioner, denying recall of a crucial medical witness amounted to a denial of the right to a fair trial and natural justice.
Arguments on Behalf of the Respondent:
On the other hand, the State, represented by its counsel, opposed the plea strongly, asserting that the application to recall the witness was nothing but a tactic to prolong proceedings. The respondent pointed out that the doctor had already been examined and extensively cross-examined during trial, and no new facts had emerged that could justify her recall. The application, they argued, was deliberately vague, bereft of details, and failed to identify what specific discrepancies existed in her testimony that warranted further clarification.
The State submitted that allowing such recall without any substantial justification would set a dangerous precedent, permitting accused persons in sensitive cases like POCSO to delay justice by filing frivolous applications. The very objective of the POCSO Act—to ensure swift and child-friendly trials—would be defeated if witnesses, especially medical professionals, could be harassed with repeated appearances without any cogent reason. The State also highlighted that medical professionals play a crucial role in trials of this nature and subjecting them to unnecessary recall would discourage them from cooperating with the system, thereby harming the justice delivery process.
Additionally, the respondent emphasized that Section 348 of the BNSS, while empowering courts to recall witnesses, clearly mandates that such recall must be for legitimate purposes, not as a means to fill in lacunae in the defence’s case. In the present case, no legitimate or lawful basis had been put forward by the accused. Therefore, the trial court’s rejection of the application was proper, justified, and required no interference.
Court’s Observations and Judgment:
Justice Swarana Kanta Sharma, after hearing both sides, embarked on a detailed analysis of Section 348 of the BNSS and its purpose. The Court observed that while the provision grants discretion to courts to summon or recall witnesses whose evidence appears essential for arriving at a just decision, such power must be exercised with caution. The legislature did not intend for this provision to become a tool for abuse, delay, or harassment. Particularly in POCSO cases, the law mandates speedy trials to protect the interests of child victims, and any attempt to unnecessarily prolong the process must be firmly discouraged.
The Court noted that in the application filed by the petitioner, as well as during arguments, no specific reasons were disclosed as to why recalling the doctor was necessary. The plea only contained a bald statement that certain discrepancies required clarification, without detailing what those discrepancies were or how they were material to the case. Justice Sharma remarked that such vague assertions could not be treated as a valid ground under Section 348. The purpose of the provision is to allow recall only when the evidence of a witness is crucial for arriving at a just decision, not to enable parties to engage in fishing inquiries or to plug gaps in their case.
The Court further noted that the doctor in question had already been examined and cross-examined at length. Allowing her recall in the absence of a clear justification would amount to reopening settled testimony and permitting the accused to fill lacunae in his defence. Such a course of action, the Court stressed, would not only undermine the principle of finality in judicial proceedings but also directly contradict the legislative intent behind the POCSO Act, which mandates time-bound completion of trials.
Rejecting the plea, Justice Sharma underscored that courts must adopt a balanced approach when dealing with applications under Section 348 of the BNSS. While the right to a fair trial is sacrosanct and courts must ensure that justice is not compromised, at the same time, they must prevent misuse of legal provisions that can obstruct expeditious disposal of cases, particularly in sensitive matters involving sexual offences against children. The Court, therefore, held that the trial court was correct in dismissing the application as vague, baseless, and intended only to delay proceedings.
In conclusion, the Delhi High Court reaffirmed the principle that the power to recall witnesses must be exercised sparingly and only when justified by clear and cogent reasons. It dismissed the petition and upheld the trial court’s order, reiterating that the criminal justice system cannot be manipulated to serve the interests of accused persons at the cost of the rights of child victims and the integrity of judicial proceedings.