Sanjay Kumar Jha vs The State (Nct Of Delhi) And Ors
- Court
- Delhi High Court
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 06.05.2026
Judgment pronounced on: 25.05.2026
Judgment uploaded on: 30.05.2026
+ CRL.REV.P. 86/2024
SANJAY KUMAR JHA .....Petitioner
Through: Mr. Jitendra Kumar Jha, Mr.
Jitender Rathi, Mr.Aniket
Kumar and Mr. Sumti Jha,
Advocates
versus
THE STATE (NCT OF DELHI) AND ORS. .....Respondents
Through: Mr. Manoj Pant, APP for the
State with SI Karan Singh, P.S
Lodhi Colony
CORAM:
HON'BLE DR. JUSTICE SWARANA KANTA SHARMA
JUDGMENT
DR. SWARANA KANTA SHARMA, J
1. By way of this petition, the petitioner seeks setting aside of the
order dated 13.07.2023 [hereafter „ impugned order ‟], passed by the
learned Additional Sessions Judge (FTSC), POCSO Act, South-East
District, Saket Court, New Delhi in case arising out of FIR bearing
No. 24/2016, registered at Police Station Lodhi Colony, Delhi for the
commission of offence punishable under Sections 354/354A/354D of
the Indian Penal Code, 1860 [hereafter „ IPC ‟] and Section 10/12 of
CRL.REV.P. 86/2024 Page 1 of 12
Signature Not Verified
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:30.05.2026
16:45:46
the Protection of Children from Sexual Offences Act, 2012 [hereafter
„ POCSO Act ‟].
2. The brief facts of the present case are that a complaint was
lodged by five female students of X Senior Secondary School
alleging inappropriate sexual conduct on the part of the petitioner
herein, Sanjay Kumar Jha, who was their Accountancy and Business
Studies teacher in the said school. It has been alleged by the
complainants that the petitioner used to behave in inappropriate and
objectionable manner with them and would make unwarranted
remarks and gestures towards them. It was alleged that the petitioner
used to call them to separate rooms, make indecent remarks, and used
to inappropriately touch them. The complainants have further alleged
that the petitioner used to give gifts and friendship bands to them. It
has been further alleged that the petitioner used to ask them to
accompany him on dates and used to boast about his financial status,
stating that he earned a salary of Rs. 60,000/- and could spend money
on them. The complainants alleged that the petitioner threatened them
with adverse academic consequences, including failing them in
examinations despite their papers having been properly written, if
they did not comply with his demands. The allegations further reveal
that the petitioner used to humiliate and abuse them in the classroom,
follow them outside the school premises, and used to pressurize them
by claiming that he was a very influential person and could secure
government jobs for them. According to the complainants, such acts
had been continuing for approximately one and a half years. On the
CRL.REV.P. 86/2024 Page 2 of 12
Signature Not Verified
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:30.05.2026
16:45:46
basis of these allegations, the present FIR was registered.
3. Upon completion of the investigation, charge sheet was filed
on 31.01.2016. Subsequently, vide order dated 02.09.2016, charges
were framed against the petitioner for commission of offences under
Sections 354, 354A and 354B of the IPC, as well as Section 10 of the
POCSO Act.
4. During the trial, examination in chief of PW-1 (Ms. „R‟) and
PW-2 (Ms. „KA‟) was recorded on 21.03.2017 and they were cross-
examined on 15.12.2017, whereas PW-4 (Ms. „P‟) was examined and
cross-examined on 02.02.2018. The petitioner had, thereafter, moved
an application on 17.02.2023 under Section 311 of the Cr.P.C.,
seeking three reliefs. Firstly , the petitioner sought permission to
summon four students of Class XI-A as defence witnesses, who were
studying in the same class as the complainants at the relevant time.
Secondly , the petitioner sought the summoning of Mr. Balinder
Singh, a teacher of the same school, who was the allottee of the cabin
where the alleged incidents were stated to have taken place. Thirdly ,
the petitioner sought recall of PW-1, PW-2 and PW-4 for further
cross-examination on the ground that their statements recorded before
the Principal of the school on 20.01.2016 were neither exhibited nor
put to the witnesses during their cross-examination. The learned Trial
Court, vide impugned order dated 13.07.2023, partly allowed the said
application to the extent of permitting four students of the concerned
class to be summoned as defence witnesses. Insofar as prayer seeking
CRL.REV.P. 86/2024 Page 3 of 12
Signature Not Verified
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:30.05.2026
16:45:46
the recall of Mr. Balinder Singh was concerned, the same was not
pressed by the petitioner. However, prayer seeking recall of PW-1,
PW-2 and PW-4 for further cross-examination, was dismissed by the
learned Trial Court vide impugned order.
5. Aggrieved by the aforesaid order, the petitioner has
approached this Court seeking recall of PW-1, PW-2 and PW-4 for
further cross-examination, contending that their statements recorded
before the Principal of the school on 20.01.2016 were neither
exhibited nor were they put to the witnesses during their cross-
examination, for the purpose of confronting them with the same.
6. The learned counsel appearing on behalf of the petitioner
argues that the recall of PW-1, PW-2 and PW-4 is necessary, since
these witnesses had made complaints against the petitioner before the
Principal of the school prior to the registration of the present FIR, and
the allegations contained therein do not corroborate the allegations
subsequently levelled in the FIR. It is further contended that although
the said complaints were part of the chargesheet, the same were never
exhibited during trial and, therefore, the witnesses were not
confronted with those complaints during the course of their cross-
examination. The learned counsel submits that in case, the present
petition is not allowed, serious prejudice would be caused to the
petitioner, resulting in grave injustice to him. Thus, it is prayed that
the present petition be allowed.
7. Per contra , the learned APP appearing for the State submits
CRL.REV.P. 86/2024 Page 4 of 12
Signature Not Verified
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:30.05.2026
16:45:46
that PW-1 and PW-2 were examined in the year 2017, whereas PW-4
was examined in the year 2018. It is submitted that the present
application seeking recall of PW-1, PW-2 and PW-4 has been moved
after an inordinate delay of nearly six years, at a stage when the
matter is already fixed for defence evidence. It is further contended
that the petitioner had adequate and fair opportunity to cross-examine
the witnesses, particularly when the complaints in question formed
part of the chargesheet from the very inception. Therefore, at this
belated stage, the petitioner cannot be permitted to seek recall of the
witnesses merely to fill up lacunae in the defence case. The learned
APP further submits that it is well settled that the discretion under
Section 311 of the Cr.P.C. is to be exercised sparingly and with great
caution, particularly in cases involving minor victims. Accordingly, it
is prayed that the present petition be dismissed.
8. This Court has heard arguments addressed by the learned
counsel for the accused-petitioner as well as the learned APP for the
State, and has perused the material available on record.
9. Before proceeding to examine the rival contentions, it would
be appropriate to first look into Section 311 of the Cr.P.C, which
reads as follows:
“ 311. Power to summon material witness, or examine
person present.— Any Court may, at any stage of any inquiry,
trial or other proceeding under this Code, summon any person
as a witness, or examine 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
CRL.REV.P. 86/2024 Page 5 of 12
Signature Not Verified
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:30.05.2026
16:45:46
to it to be essential to the just decision of the case.”
10. The law is well-settled that a Court has broad discretionary
powers to summon, examine, recall, or re-examine any person in
order to find out the truth and reach a just and proper decision in the
matter, while dealing with an application filed under Section 311 of
Cr.P.C., since it is the Court‟s duty to ensure that there is no
miscarriage of justice due to denial of fair opportunity to any party
before it. However , at the same time, it is also well-settled by way of
catena of judicial precedents of the Hon‟ble Supreme Court, that the
discretion under Section 311 of Cr.P.C., for allowing recall or re-
examination of a witness, is to be invoked judiciously, cautiously,
and with due circumspection, and not in a routine, arbitrary or
capricious manner. Such discretion must be exercised in light of the
facts and circumstances of each case, while carefully balancing the
considerations of fairness, avoidance of unnecessary hardship to
witnesses, and prevention of undue delay in the trial proceedings.
11. Further, it has to be taken into consideration that the witnesses
which are sought to be recalled in the present case by the petitioner,
were minors at the time of commission of the alleged offence, and
therefore the mandate of Section 33(5) of the POCSO Act assumes
significance in the present case, as the said provision prohibits the
Special Court from repeatedly summoning the child victim to testify
before the Court. The said provision reads as follows:
“33(5) The Special Court shall ensure that the child is not
CRL.REV.P. 86/2024 Page 6 of 12
Signature Not Verified
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:30.05.2026
16:45:46
called repeatedly to testify in the court.”
12. Therefore, in this Court‟s opinion, while entertaining and
adjudicating an application under Section 311 of the Cr.P.C. seeking
recall of a victim in a case involving commission of offence under the
POCSO Act, where the embargo contained in Section 33(5) of the
POCSO Act is attracted, the Court is required to draw a balance
between the mandate of both these provisions, considering the facts
and circumstances of each case.
13. In this regard, the Hon‟ble Supreme Court in Madhab
Chandra Pradhan & Ors. v. State of Odisha: 2024 SCC OnLine SC
6131, has held as under:
“5. We are of the considered opinion that although Section 33
(5) would not act as an absolute bar to recall the victim for
reexamination as a witness, each case must be looked at in the
context of its individual facts and circumstances. Thus, the
question which falls for our consideration in the present case is
whether in the exercise of its powers under Section 311 of the
Cr.P.C, the Special Court ought to have recalled the
child/victim for re-examination as witness, keeping in mind the
mandate under Section 33 (5) of the Act.
6. The principles which would guide the exercise of a Court‟s
power under Section 311 of the Cr.P.C were succinctly
summed up by this Court in State (NCT of Delhi) v. Shiv
Kumar Yadav (2016) 2 SCC 402 . It was laid down by this
Court that first, the plea for recall of a witness under Section
311 must be bona fide and genuine. Secondly, applications for
recall of a witness under Section 311 should not be allowed as
a matter of course and the discretion given to the Court must be
exercised judiciously, not arbitrarily.”
14. This Bench in Rakesh v. State of NCT of Delhi: 2023 SCC
OnLine Del 4774 , also observed that the rights of an accused under
CRL.REV.P. 86/2024 Page 7 of 12
Signature Not Verified
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:30.05.2026
16:45:46
Section 311 of Cr.P.C. must be carefully balanced with the statutory
protection afforded to a child witness under Section 33(5) of the
POCSO Act. It was also held that the power to recall a witness is
required to be exercised judiciously and with due sensitivity,
especially in matters involving allegations of sexual offences. The
relevant observations, insofar as they are relevant for the present
case, are reproduced hereunder:
“10. While the bar under Section 33(5) POCSO Act may not be
absolute and balance of rights needs to be maintained under
Section 33(5) of POCSO Act and Section 311 of Cr. P.C., at
the same time, the Court's discretion in exercising its power to
re- summon a witness for cross-examination has to be
exercised with circumspection, caution and utmost
sensitivity.The crucial word used in Section 33(5) of POCSO
Act is "called repeatedly". This Section thus has to be
interpreted to balance and applied with the right under Section
311 Cr. P.C. of accused and right to fair trial of an accused
depending on facts and circumstances of each case.
*
19. The trial in this case has already been prolonged to seven
years and the application under Section 311 Cr.P.C. was filed
after almost six years of recording of testimony of the
witnesses concerned. All this while, for the six years, when the
testimony of other witnesses was being recorded, there was no
whisper from the side of the accused/accused to recall the
present witnesses. The present revision petition as well as
application filed under Section 311 Cr.P.C. before the learned
Trial Court thus seems to be an attempt to delay the trial, which
is already delayed.
20. Learned counsel for the accused also argued that in case the
present petition is not allowed, it will amount to violation of
right of fair trial to the accused/accused.
21. While this Court cannot dispute that the right to fair trial is
a crucial and precious right of the accused, so is the
complainant's right to a fair trial which requires that they
should not unnecessarily be harassed, especially in the cases of
sexual assault-. This Court notes that at times, people may not
CRL.REV.P. 86/2024 Page 8 of 12
Signature Not Verified
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:30.05.2026
16:45:46
even report such cases of sexual assault of children of tender
age as in this case, she was only seven years of age for fear of
being harassed by continuous visits to the Courts or fear of
embarrassment and traumatic cross-examination. It would have
been a different decision in case the record would have
revealed that the witnesses' cross-examination consisted of
only asking few formal questions and not of the incident, but in
the present case, to the contrary, as already observed above, the
crossexamination had been conducted at length and all relevant
aspects had been covered by the previous counsel for the
accused. In view of the same, though the accused has to be
granted and ensured a fair trial, it cannot mean being afforded
unjustified repeated opportunities of cross-examination in
every case to indicate fair trial. The case of an accused has to
be meritorious where a relief as prayed for in the present case,
can be granted.
22. The other contention that in case the present application is
not allowed, the case may end into conviction is also without
merit since, at the cost of repetition, it is to be taken note of
that the previous counsel has cross-examined the witnesses at
length and only due to apprehension or fear of the accused that
cross-examination did not result in answers that would have
helped him, cannot be a ground to recall the witnesses after six
years of conclusion of their testimony.
23. While balancing the right of the accused to a fair trial and
upholding the intent of the legislation, the courts are duty
bound to remain sensitive to the plight of the seven-year-old
sexual assault victim. She and her mother cannot be recalled to
relive the entire trauma only because the new counsel is
dissatisfied with the elaborate cross-examination of these
witnesses. Thus, this Court also has a duty to ensure an
expeditious and fair trial, preventing misuse of such
applications for delaying the proceedings before the learned
Trial Court...”
15. Adverting to the factual matrix of the present case, it would
first be relevant for this Court to note that PW-1 and PW-2 had got
their statements recorded before the Principal of the school in
question on 20.01.2016, along with other victim girls. However, as
CRL.REV.P. 86/2024 Page 9 of 12
Signature Not Verified
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:30.05.2026
16:45:46
borne out from the material available on record, including the Trial
Court Record and the copies of such statements filed along with the
present petition itself as Annexure F, no such statement of PW-4 was
ever recorded before the Principal of the school. Therefore, the
question of recalling PW-4 on the said ground does not arise.
16. As far as the first ground taken by the petitioner, i.e., that the
complaints/statements dated 20.01.2016 made by the witnesses
before the Principal prior to registration of the present FIR were not
exhibited and, therefore, not put to PW-1 and PW-2 during the course
of their cross-examination, is concerned, this Court notes that the said
complaints/statements formed part of the chargesheet from the very
inception and were within the knowledge and access of the petitioner.
At this stage, the petitioner cannot contend that merely because the
said complaints were not formally exhibited at the time of recording
of their examination-in-chief, they could not have been referred to
during the cross-examination of the witnesses. Further, the learned
Trial Court has rightly observed that merely because certain
statements were not put to the witnesses during cross-examination
does not confer an indefeasible right upon the petitioner to seek recall
of the child witnesses, particularly when Section 33(5) of the POCSO
Act places a restriction on repeated summoning and examination of
child witnesses.
17. It is also pertinent to note that PW-1 and PW-2 were
summoned for recording of their examination-in-chief and cross-
CRL.REV.P. 86/2024 Page 10 of 12
Signature Not Verified
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:30.05.2026
16:45:46
examination on two occasions, i.e., on 21.03.2017 and 15.12.2017.
Adequate and fair opportunity was granted to the learned counsel for
the petitioner to cross-examine all the witnesses. Despite the
complaints in question being available on record, no questions
pertaining thereto were put to the witnesses during their cross-
examination. The learned Trial Court has also rightly noted that the
application under Section 311 of Cr.P.C. was filed nearly six years
after the examination of the witnesses. At this stage, the petitioner‟s
conduct appears to be an attempt to delay the proceedings before the
learned Trial Court. Moreover, permitting recall of the witnesses
would unnecessarily subject them to revisiting the trauma .
18. It must further be borne in mind that the petitioner cannot be
permitted to fill up lacunae in the defence case under the guise of
Section 311 of Cr.P.C. The adjudication of an application under
Section 311 of Cr.P.C. has to be guided by the test of the essentiality
of the evidence sought to be adduced. The provision cannot be
invoked merely to fill in the lacunae in the cross-examination when a
fair and sufficient opportunity had already been provided to the
petitioner for such cross-examination.
19. As far as the second ground urged by the learned counsel for
the accused for recall of the witnesses that the complaints made
before the Principal of the school do not contain the allegations
subsequently levelled in the FIR, is concerned, this Court is of the
opinion that upon perusal of the said complaints/statements, the
CRL.REV.P. 86/2024 Page 11 of 12
Signature Not Verified
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:30.05.2026
16:45:46
allegations levelled in the FIR appear to be broadly consistent with
the complaints/statements given to the Principal of the school. In any
event, merely because there may be certain omissions or minor
inconsistencies in the complaints and the FIR would not, by itself,
justify recalling the witnesses, when the witnesses have remained
consistent in their statements recorded under Section 164 of Cr.P.C.,
and in their testimony before the learned Trial Court.
20. Accordingly, this Court is of the considered opinion that no
case is made out for recalling the witnesses once again, particularly
when Section 311 of Cr.P.C is read in conjunction with the mandate
of Section 33(5) of the POCSO Act, and when the witnesses have
already been examined in detail.
21. Therefore, in view of the foregoing discussion, this Court finds
no reason to interfere with the impugned order passed by the learned
Trial Court. Accordingly, the present petition stands dismissed.
22. It is, however, clarified that nothing expressed hereinabove
shall tantamount to an expression of opinion on the merits of the
case.
23. The judgment be uploaded on the website forthwith.
DR. SWARANA KANTA SHARMA, J
MAY 25, 2026/ns
RB
CRL.REV.P. 86/2024 Page 12 of 12
Signature Not Verified
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:30.05.2026
16:45:46