The court affirmed that recall of witnesses under Section 311 Cr.P.C. must serve a valid purpose and the previous opportunities for cross-examination were adequate, aligning with the protective mandates of the POCSO Act.

ORDER :

A.D. Jagadish Chandira, J.

This criminal original petition has been filed seeking quashment of the order dated 28.11.2025 passed in Crl.M.P.No.1212 of 2025 in Spl.SC.No.122 of 2021 on the file of the Principal Special Court for Cases under POCSO Act, Salem.

2. The case of the petitioners is that they are accused facing trial in Spl.SC.No.122 of 2021 for the offences under Sections 506(I) and 450 of IPC and Sections 6, 5(l), 5(n) and 5(j)(ii) of the POCSO Act, 2012 and they filed a petition under Section 311 of Cr.P.C./348 of BNSS in Crl.M.P.No.1212 of 2025, seeking to recall P.Ws.1 to 8 for cross- examination. However, the trial court, vide impugned order dated 28.11.2025, dismissed the said petition on the ground that the same has been filed only to drag on the proceedings. Challenging the same, the present petition has been filed.

3. Learned counsel for the petitioners submitted that at the time of examination of the witnesses, the petitioners were in jail and therefore, they were unable to give proper instruction to their counsel, due to which, no proper cross-examination of the witnesses was conducted and that the petitioners have certain valid questions to be put to P.Ws.1 to 8 and hence, the petitioners filed the present petition under Section 311 of Cr.P.C., seeking to recall P.Ws.1 to 8 for further cross-examination, as the same is absolutely necessary, in order to enable the trial court to arrive at a just and reasonable decision. However, the trial Court, without considering any of the above said facts, had dismissed the petition under Section 311 Cr.P.C. which is not sustainable. He also submitted that if the petitioners are not permitted to recall P.Ws.1 to 8 for further cross-examination, they would be put to grave hardship. Hence, he prayed to set aside the impugned order dated 28.11.2025.

4.1. Per contra, the learned Government Advocate (Crl. Side) appearing for the respondent submitted that as per Section 33(5) of the POCSO Act, the Special Court shall ensure that the child is not called repeatedly to testify in the Court. In this context, the learned Government Advocate (Crl. Side), relied on the decision of the Hon’ble Apex Court in the case of Madhab Chandra Pradhan & Ors. Vs. State of Odisha (Special Leave Petition (Crl.) No.10082 of 2024), wherein the Hon’ble Apex Court has held as hereunder:

“5. We have heard learned counsel for the petitioners, who would submit that Section 33(5) does not operate as an absolute bar for recalling the child as a witness for re- examination. Learned counsel for the petitioners would argue that Section 33 (5) would also not come in the way of the Special Court's powers under Section 311 of the Cr.P.C to recall or re-examine any person who has already been examined. It would be apposite to reproduce Section 311 of the Cr.P.C before adverting to the facts of the present case. Section 311 of the Cr.P.C reads as under:

"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 to it to be essential to the just decision of the case..."

We are of the considered opinion that although Section 33 (5) would not act as an absolute bar to recall the victim for re- examination 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