The court ruled that a victim can be recalled for cross-examination if deemed essential for a just decision, overriding concerns of repeated testimony due to the victim's age.

ORAL ORDER

The petitioner is before this Court calling in question an order of the concerned Court dated 24.11.2025, by which, an application filed under Section 348 of the BNSS comes to be rejected. The petitioner sought recalling of PW.2 - the victim for further cross-examination.

2. Heard Sri. H. Muniswamy Gowda, learned counsel appearing for the petitioner and Sri. K. Nageshwarappa, learned HCGP appearing for respondent No.1.

3. Facts in brief, germane, are as follows:

The second respondent registers a complaint on 28.01.2023 for offences punishable under Sections 376(2)(f) and 376(2)(n) of the IPC read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act' for short). The police, after investigation, file a charge sheet and the matter is now pending before the Special Court in Spl.C. No.137/2023. The issue in the lis does not pertain to the merit of the matter. The petitioner examines PW.2 initially on 10.08.2023 and was cross-examined as well. On 12.11.2025, when an application comes to be filed by the petitioner seeking recall of PW.2 for further cross-examination, as obtaining under Section 348 of the BNSS, which is erstwhile Section 311 of the Cr.P.C. The said application comes to be rejected and the petitioner, on such rejection, is before this Court in the subject petition.

4. Learned counsel appearing for the petitioner submits that further cross-examination of the victim, who is now 20 years old, is imperative for the reason that if the truth is not unearthed, the conviction could result in 20 years imprisonment. In that light, he would submit that one opportunity be granted to the petitioner to further cross- examine the victim and would undertake that he would not drag the proceedings on such score.

5. Learned HCGP submits that the victim was once already examined way back on 10.08.2023, and further examination should not be permitted, as the victim cannot be repeatedly called for cross-examination in the light of the bar under Section 33 (5) of the POCSO Act. He would seek dismissal of the petition.

6. I have given my anxious consideration to the respective submissions made by the learned counsel and have perused the material on record.

7. The afore-narrated facts are largely a matter of record. The issue lies in a narrow compass, as to whether the petitioner should be permitted to further cross-examine the victim or otherwise. The only bar is that the victim should not be repeatedly called as obtaining under Section 33 (5) of the POCSO Act. (5) of the POCSO Act, reads as follows:

“33. Procedure and Powers of Special Court. – (1) …

…. …. ….

(5) The Special Court shall ensure that the child is not called repeatedly to testify in the court.”

8. The victim today is 20 years old. Therefore, the bar under Section 33 (5) of the POCSO Act to call the victim repeatedly for the second time is not that the one can place an impediment for an application to be filed. Section 311 of the Cr.P.C. or Section 348 of the BNSS permits filing of an application seeking recall of the witness at any stage in the proceedings unless it is shown that the application is an abuse of the process of the law. The victim being called for the second timecannot be construed to be an abuse of the process of the law and the offence alleged against petitioner can result in conviction for more than 10 years.

9. This Court, in the case ofPAVAN v. STATE , 2024 SCC OnLine Kar 4592 , in an identical circumstance, had considered whether an application to recall the victim under Section 311 of the Cr.P.C. can be allowed in light of the bar created under Section 33 (5) of the POCSO Act, and held as follows:

“….. ….. …..

7. The afore-narra