The recall of a child victim witness under S. 311 Cr.P.C. is not a matter of course; it requires the applicant to demonstrate a bona fide and essential justification to satisfy the Court, duly balancing the accused's right to a fair trial against the victim's protection from repetitive trauma.

THIS CRIMINAL PETITION IS FILED U/S 528 OF BNSS, 2023, PRAYING TO SET ASIDE THE ORDER DATED 15/11/2025 PASSED BY THE COURT OF II ADDL. DISTRICT AND SESSIONS JUDGE AND SPECIAL COURT (POCSO), DHARWAD IN SPECIAL S.C. (POCSO) NO.52/2022, WHEREBY THE PETITIONERS APPLICATION U/S 311 CR.P.C., (CORRESPONDING TO SECTION 349 OF THE BNSS, 2023) FOR RECALLING PW-4/C. W. 8 FOR FURTHER CROSS-EXAMINATION AND ALLOW THE PETITIONER’S APPLICATION U/S 311 CR.P.C./SECTION 349 OF BNSS AND DIRECT THE TRIAL COURT TO RECALL PW-4 FOR LIMITED AND SPECIFIC FURTHER CROSS EXAMINATION ON THE POINTS MENTIONED IN THE APPLICATION, IN THE INTEREST OF JUSTICE.

THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

ORAL ORDER

(PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA)

Heard Sri A.R.Patil, learned counsel for the petitioner, Smt.Kirtilata R.Patil, learned High Court Government Pleader for respondent No.1 and Sri L.S.Sullad, learned counsel for respondent No.2.

2. Accused in Special S.C.No.52/2022 is the petitioner challenging the order passed by the learned Special Judge rejecting the application filed under Section 311 Cr.P.C.

3. Facts in the nutshell which are utmost necessary for disposal of the present petition are as under:

3.1 Accused is charge sheeted for the offences punishable under Section 363, 376, 323, 506 IPC and Section 6 and 10 of the POCSO Act. After securing the presence of the accused, charges are framed and trial has commenced. Victim girl is aged 8 years. She has been examined as PW4.

3.2. After examination of PW5, an application is filed on behalf of the accused seeking recall of PW4 for further cross-examination by filing an application under Section 311 Cr.P.C.

3.3. Application contents read as under:

“Herein the Advocate for the accused most respectfully submits as follows;

01. That Counsel for the accused has cross examined the witness since the alleged offences is serious in nature and the Cross examination of P.W-4/C W-8. is very much essential who is victim and material witness in the case and therefore, kindly Re-call P.W-4 for further cross examination on behalf of accused by allowing the application.

WHEREFORE, this Hon'ble Court may kindly be pleased to Re-Call P.W-4/ C.W-8 for further Cross examination by Accused by allowing the application in the ends of justice and equity.”

4. Application was opposed by the prosecution by filing detailed written objections by specifically contending that no reasons whatsoever are sought for recalling the PW4 as could be seen from Para 4 of the objection statement.

5. Learned trial Judge after hearing arguments of the parties, referred to the judgment of the Hon’ble Apex Court in case of MADHAB CHANDRA PRADHAN AND OTHERS V. STATE OF ODISHA dismissed the application filed under Section 311 Cr.P.C. by the accused.

6. Correctness of the said order is called in question in the present petition on following grounds:

 It is humbly submitted that to recall a witness is not restricted by opportunities to give the accused for cross examination, so long as the court is satisfied that further examination is essential for the just decision of the case. The Special Court failed to consider that the Supreme Court and High Courts have repeatedly held that the power under Section 311 Cr.P.C. is extremely wide, and is intended to enable the court to discover the truth.

 While acknowledging the protective mandate of Section 33(5) of the POCSO Act, the Trial Court erred in treating this provision as an absolute b