The court emphasized that recalling witnesses requires strong justification and cannot be used to delay trials or harass victims, aligning with established principles of fair trial under the law.

JUDGMENT :

VIVEK KUMAR SINGH, J.

1. Heard Shri Arvind Kumar Srivastava, the learned counsel for the applicants, Shri Akhilesh Kumar Mishra, the learned counsel appearing for respondent no. 2 and Shri Mohd. Afzal, the learned counsel for the State and perused the record.

2. The present application has been filed by the applicants challenging the order dated 16.10.2025, passed by the Additional Sessions Judge/Special Judge (POCSO) Act, Sant Kabir Nagar in S.S.T. No. 0071 of 2018 ( State of U.P. vs. Neelam ), on an application preferred by the accused applicants under Section 348 of BNSS praying herein to recall the victim/PW-2/opposite party no.3 for further cross examination.

3. The brief facts of the case are to the effect that a first information report was lodged by the informant/opposite party no.2 on 21.12.2017 in respect of incident dated 15.12.20217, bearing Case crime no.1888 of 2017, under Section 363 , 366, 120B IPC and Section 7 /8 POCSO Act, Police Station Bakhira, District Sant Kabir Nagar. The Investigating Officer after due investigation submitted chargesheet in this case on 27.01.2018, under Section 363 , 366, 120B IPC and Section 16 /17 POCSO Act and once the statement of the victim was recorded under Sections 161 and 164 Cr.P.C. the trial court took cognizance of offence and during the course of trial charges were framed. The accused pleaded not guilty and claimed to be tried.

4. The first informant was examined in the trial court as PW-1. Thereafter the victim was examined as PW-2 on 26.04.2019 but due to paucity of time her cross-examination was continued for 10.05.2019 and she was cross-examined at length. Thereafter the applicant Neelam moved an application under Section 348 BNSS and objection was filed by the learned ADGC on 04.10.2025. Both parties were heard by the learned trial court and passed the impugned order dated 16.10.2025 whereby the application filed by the applicant Neelam was dismissed.

5. In the aforesaid background of the case, the present application under section 528 BNSS has been moved by the applicants-accused.

6. The learned counsel for the applicants submits that one more opportunity be granted to the applicants for cross-examination of the victim and the learned Trial Court had committed gross illegality in rejecting the application vide order dated 16.10.2025. The order impugned is against the principle settled by the Hon'ble Apex Court. As such interference by this Court is required in this matter.

7. The learned AGA as well as the learned counsel appearing for the opposite party no.2 have vehemently opposed the application and submitted that the application under section 348 BNSS was moved with the sole intention to delay the trial which is impermissible and in the circumstances of the case, the application has rightly been rejected by the learned trial court. The application for recalling of the witness has been moved after about six years and the delay has not been properly explained by the applicants. The victim was examined on 10.05.2019 and the application was moved in the year 2025. All the witness of facts have been examined in the trial court and as per Section 33 (5) of POCSO Act, 2012, the child witness would not be called repeatedly to testify in the court.

8. I have considered the submissions advanced by the learned counsel for the parties and perused the records as well as impugned order dated16.10.2025 passed by the learned Trial Court in the aforesaid case.

9. The principle related to recall of the witnesses under section 311 of Cr.P.C. (corresponding Section-348 BNSS) has been settled by Hon'ble Apex Court in the case (s) of Mohd. Khalid vs. State of West Bengal