Delhi High Court Denies Witness Recall in POCSO Case Under Section 348 BNSS: 'Not for Filling Lacunae' - 2025-08-12

Courts Signal Firm Stand: Witness Recall Under BNSS Not a Tool to Rebuild the Defense

In a recent ruling, the High Court of Delhi has reaffirmed strict procedural boundaries regarding the recall of witnesses, specifically within the sensitive framework of the Protection of Children from Sexual Offences (POCSO) Act. Presided over by Dr. Justice Swarana Kanta Sharma, the Court dismissed a revision petition filed by an accused seeking to recall two key prosecution witnesses, sending a clear message against frivolous procedural delays.

The Background of the Dispute

The petitioner, Mohsin Khan, had faced charges under the Bharatiya Nyaya Sanhita (BNS) 2023 and the POCSO Act, 2012, flowing from an FIR registered at Police Station Nihal Vihar. The allegations detailed a grave scenario involving a victim under the age of 13. During the trial at the Tis Hazari Courts, the petitioner filed an application under Section 348 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, seeking to recall PW-10—a doctor from Deen Dayal Upadhayay Hospital who conducted the medical termination of pregnancy—and PW-12, the Investigating Officer (IO).

The application was initially rejected by the learned Additional Sessions Judge, who noted the request was "vague and cryptic," noting that the witnesses had already been "cross-examined at length."

Arguments on the Floor

Counsel for the petitioner argued that further cross-examination was essential to reach a "just decision" and that the trial court failed to appreciate alleged discrepancies in the witnesses' testimonies. The petitioner maintained that his right to recall witnesses was not limited by previous cross-examination and that the plea was not intended to "fill in the lacuna" or gaps in the defense.

Conversely, the State contended that the witnesses had already been thoroughly questioned. The State argued that the petitioner’s application lacked any substantive reasoning, serving instead as a deliberate attempt to prolong a case that requires the specific legislative mandate of expeditious disposal.

The Court’s Reasoning

Dr. Justice Swarana Kanta Sharma’s judgment underscored that while the court possesses the discretion to recall witnesses per Section 348 of the BNSS (the successor to Section 311 of the CrPC), this authority is not a blanket right. It must be exercised with caution to ensure that justice is served rather than thwarted by procedural attrition.

The Court highlighted the lack of specificity in the petitioner’s request, noting that neither the trial court application nor the High Court petition elucidated a single concrete reason for the recall.

Key Observations

The High Court’s judgment provided critical insights into the balance between defense rights and trial efficiency:

> "Recalling a witness, especially in cases under the POCSO Act which are required to be tried expeditiously, cannot be permitted to be delayed by filing applications which disclose no cogent or justifiable reason."

> "The power under Section 348 of the BNSS... must be exercised for a legitimate and lawful purpose and not as a means to fill lacunae in the prosecution or defence."

> "The impugned order dated 01.07.2025 has rightly noted that the application was vague, bereft of particulars, and aimed at recalling witnesses who had already been cross-examined at length."

Implications for Future Trials

By dismissing the petition, the Delhi High Court has fortified the principle that evidentiary procedures must not be weaponized to stall trials. For legal practitioners, the message is clear: if a witness recall is sought, the application must be backed by specific, material justifications that demonstrate why further questioning was impossible during the initial session. In the context of POCSO cases, where the goal is the swift attainment of justice for minors, the judiciary remains increasingly intolerant of tactical delays that lack a clear evidentiary basis.

The petition was summarily dismissed, effectively clearing the path for the trial in the Tis Hazari Court to proceed toward final adjudication.