TITLE – Mohammed Iliyas Idrishbhai Mevati Versus State of Gujarat
Decided On September 2, 2023
789 of 2023
CORAM: Hon’ble Justice Mr Hasmukh
INTRODUCTION-
The applicant herein has filed the current Criminal Revision Application under Sections 397 and 401 of the Criminal Procedure Code, 1973, in an effort to overturn the impugned order made by the learned Additional Sessions Judge and Special Judge (POCSO), Court No. 21, City Civil & Sessions Court, Ahmedabad in POCSO Case No. 179/2021, which dismissed the applicant’s application Exh.62 under Section 397 of the Criminal Procedure Code, 1973, on May 9, 2023.
FACTS OF THE CASE
The applicant claims that the learned Special Judge erred in rejecting the application Exh.62, which was submitted to recall the witness and conduct further cross-examination. The witness was initially questioned, but some questions were not asked of her. Now that the advocate has changed, more questions must be asked of the witness, and in accordance with the fair trial rule, the current applicant must be given the chance to cross-examine the witness. The learned Special Judge made a mistake by failing to call the witness, the prosecutrix, and failed to give the current applicant, the accused, the right to a fair trial.
COURT ANALYSIS AND DECISION
To the contrary, the learned APP has vehemently opposed the current application and claimed that prosecutrix is a minor and has already been examined in the year 2022 and that such an exercise is not permitted in order to simply fill in the gaps in prosecutrix’s evidence.
The prosecutrix is a minor, so the court must take that into account when deciding whether or not to repeatedly recall her and subject her to trauma. The mere substitution of an advocate is not sufficient cause to call the witness. She therefore asked for the current application to be rejected. Given the aforementioned fact, it is against the law to simply recall witnesses in cases of non-compoundable offences in order to fill in any gaps in the evidence or simply to erase prior testimony because doing so would not serve the interests of justice. It has been stated that the Court must make sure that the child is not repeatedly called to testify in court, even under Section 33(5) of the POCSO Act. Additionally, a change in the advocate is not a reason to recall the prosecutrix.
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