New Delhi: The Supreme Court has held that a rape victim should not be harassed by repeatedly calling her to appear in court for cross-examination during trial proceedings. A bench of Justices Dipankar Datta and Satish Chandra Sharma set aside an order passed by the Tripura HC which had allowed the plea of ​​the accused to recall the victim for questioning after four years, as she had already been cross-examined. It said that the prosecutor had to go through the process of testifying and cross-examining him on four separate occasions before the trial court, apart from during the investigation under Section 164 of CrPC and recording his statement before the Magistrate, and recalling him after four years of cross-examination was harsh.“Instructing the recall would cause further and undue hardship to the prosecutor. Witnesses cannot be expected to face difficulty in appearing in court repeatedly, especially in sensitive cases. “This may result in undue hardship to the victims, especially for heinous crimes, if they are required to appear in court again and again to face cross-examination,” the SC said. The HC had passed an order recalling a survivor under section 311 of the Code of Criminal Procedure on a petition filed by the accused. Noting that the application was filed four years after the cross-examination of the victim was completed and sufficient grounds do not exist to recall the victim after such a long delay, the court allowed the plea of ​​the state government, which had challenged the HC order.Section 311 of the CrPC states that “Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon to the attendance any person, even if not called as a witness, or recall and re-examine any person already examined; and the court may summon and examine or recall and re-examine any such person if his evidence Appears necessary for proper decision of the case.The court said that the power conferred under Section 311 is undoubtedly wide, and such power needs to be exercised in a restrained and judicious manner and not arbitrarily. Citing previous orders it said, “Merely to say that the recall was necessary to ensure a fair trial is not sufficient, unless there are cogent reasons to show how a fair trial was harmed without the recall. Recall is not a fixed matter, and the discretion given to the court must be used judiciously and not arbitrarily to prevent miscarriage of justice.”In this case, the accused was first examined and cross-examined in chief on June 4, 2018, followed by further cross-examination in August 2018. Subsequently, the prosecution filed an application under Section 311 of the CrPC seeking recall of the accused and re-examination. He was further examined and cross-examined in August and November 2019. Four years later, the accused sought to recall him in the witness box, which was rejected by the trial court but allowed by the HC. However, the SC has now set aside the HC order.