The Supreme Court has held that a rape survivor should not be subjected to harassment through repeated summons to appear in court for cross-examination during trial proceedings. A bench comprising Justices Dipankar Datta and Satish Chandra Sharma quashed an order passed by the Tripura High Court, which had allowed the accused's plea to recall the survivor for examination four years after she had already been cross-examined.
Background of the Case
The prosecutrix had already undergone the ordeal of deposition and cross-examination on four separate occasions before the trial court. Additionally, her statement had been recorded during the investigation and before the magistrate under Section 164 of the Code of Criminal Procedure (CrPC). The Supreme Court observed that it was harsh to recall her four years after she was cross-examined.
Supreme Court's Observations
The bench stated: “Directing recall would inflict further and unjustifiable hardship upon the prosecutrix. The witnesses cannot be expected to face the hardship of appearing in court repeatedly, particularly in sensitive cases. It can result in undue hardship for the victims, especially so of heinous crimes, if they are required to repeatedly appear in court to face cross-examination.”
The High Court had passed the order to recall the survivor under Section 311 of the CrPC on a plea filed by the accused. Noting that the application was filed four years after the completion of her cross-examination and that no sufficient ground existed for recalling the prosecutrix after such a prolonged delay, the Supreme Court allowed the plea of the state government, which had challenged the High Court order.
Legal Provisions
Section 311 of the CrPC states that “any court may, at any stage of any inquiry, trial or other proceeding under this code, summon any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.”
The court emphasized that the power conferred under Section 311 is undoubtedly wide, but it must be exercised sparingly and in a judicious manner, not arbitrarily. “Mere observation that recall was necessary for ensuring a fair trial is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course, and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily,” the bench said, citing previous orders.
Timeline of Events
- June 4, 2018: The prosecutrix was first examined in chief and cross-examined.
- August 2018: Further cross-examination took place.
- August and November 2019: The prosecution filed an application under Section 311 CrPC seeking recall and re-examination of the prosecutrix, which was allowed. She was further examined and re-cross-examined during this period.
- Four years later: The accused sought to recall her again. The trial court rejected this plea, but the High Court allowed it.
The Supreme Court has now quashed the High Court order, reinforcing that the rights of survivors must be protected and that courts must ensure that witnesses, especially victims of heinous crimes, are not subjected to undue hardship.
