Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2026 Supreme(Online)(Kar) 19825

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

NC: 2026:KHC:16373

CRL.P No. 16894 of 2025

BETWEEN:

1. SRI. NARENDRA R.,

S/O RAMACHANDRA,

AGED ABOUT 29 YEARS,

R/AT KUPPAMPALYA VILLAGE,

MOTHAKAPALLI PANCHAYATH,

MULABAGAL TALUK,

KOLAR - 563 136.

…PETITIONER

(BY SRI. NANJUNDA GOWDA M.R., ADVOCATE)

AND:

1. STATE OF KARNATAKA,

BY BETHAMANGALA POLICE,

BENGALURU,

REPRESENTED BY

STATE PUBLIC PROSECUTOR,

BENGALURU - 560 001.

2. SRI. RADHA KRISHNA K.R.,

S/O.RAMAKRISHNAPPA,

AGED 43 YEARS,

R/A. KODIGENAHALLI VILLAGE,

VENGASANDRA POST

K.G.F TALUK

KOLAR - 563 116.

…RESPONDENTS

(BY SRI. ANOOP KUMAR, HCGP FOR R1)

THIS CRL.P. IS FILED U/S 482 CR.PC (FILED U/S 528 BNNS) PRAYING TO QUASH AND SET ASIDE THE ORDER DATED 13.11.2025 PASSED IN SPL.CASE (POCSO) NO.100/2024 ON THE FILE OF THE ADDL.DISTRICT AND SESSIONS JUDGE, FTSC-I (POCSO) KOLAR FOR THE OFFENCES P/U/S 363, 376(2)(n), 344, 323, 506, 212 OF IPC AND SECTIONS 6 AND 17 OF POCSO ACT AND SECTION 9, 10 OF THE PROHIBITION OF CHILD MARRIAGE ACT, 2006 AND PROVIDE AN OPPORTUNITY TO THE PETITIONER TO CROSS-EXAMINE PW-1 (VICTIM), PW-2 (FATHER OF THE VICTIM), PW-5 (HEAD MISTRESS OF APOLLO HIGH SCHOOL), PW-6 (HEAD MASTER OF GOVERNMENT HIGHER PRIMARY SCHOOL).

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

CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA

Advocates:
For the Appellants/Petitioners: Nanjunda Gowda M.R.
For the Respondents: Anoop Kumar

The power under Section 311 Cr.P.C. is a mandatory duty to ensure justice through the discovery of truth; the protection under Section 33(5) POCSO Act against recalling a child witness is diluted once the victim attains the age of majority.

Headnote:(A) Code of Criminal Procedure, 1973 - Section 311 - Protection of Children from Sexual Offences Act, 2012 - Section 33(5) - Recall of witnesses - Scope of power - Application for recall of witnesses rejected by trial court on grounds of witness fatigue and potential for delay - Victim reached majority (19 years) during trial - Trial court’s power under Section 311 is broad and mandatory if evidence is essential to just decision - Rigor of Section 33(5) regarding repeated testimony of child witnesses stands diluted when victim attains majority. (Paras 3, 7, 8, 9)

Facts of the case:
The petitioner, accused in a POCSO case, filed an application under Section 311 of the Cr.P.C. to recall four prosecution witnesses (victim, father, and two headmasters) for further cross-examination, which was rejected by the trial court. The petitioner challenged this order before the High Court, asserting the necessity of further cross-examination to establish the truth and determine the victim's age, with an assurance of cooperation in proceedings.

Findings of Court:
The court held that criminal trials are expeditions towards truth and that the power under Section 311 should be exercised to ensure justice. Since the victim is now 19 years old, the bar under Section 33(5) of the POCSO Act is diluted. The petition was allowed, granting one last opportunity for cross-examination.

Issues: Whether the trial court’s rejection of an application to recall witnesses for further cross-examination, despite the victim having attained the age of majority, was sustainable in light of Section 311 of the Cr.P.C.

Ratio Decidendi: Discovery of truth is the paramount objective of a criminal trial; when an application for recalling witnesses is made, the trial court must determine the essentiality of evidence rather than defaulting to mechanical rejection, especially when the statutory bars protecting child witnesses no longer apply.

Result: Petition allowed; impugned order set aside.

ORAL ORDER

The petitioner is before the court calling in question an order of the concerned Court, which rejects an application filed by the petitioner under Section 311 of the Cr.P.C. in terms of its order dated 13.11.2025.

2. Heard Sri. Nanjunda Gowda M.R., learned counsel appearing for the petitioner and Sri. Anoop Kumar, learned HCGP appearing for respondent No.1.

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

The petitioner is the accused who gets embroiled in a crime for the offences punishable under Sections 363, 376(2)(n), 344, 323, 506 and 212 of the IPC, Sections 6 and 17 of the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act' for short) and Sections 9 and 10 of the Prohibition of Child Marriage Act, 2006. The police conduct investigation and file a charge sheet. The issue in the lis does not relate to the merit of the matter, but an application being filed by the petitioner on 16.09.2025 seeking recall of witnesses - PW-1, PW-2, PW-5 and PW-6 for further cross-examination. The application comes to be rejected on the score that it is only a ruse to drag the proceedings. Therefore, the petitioner is before this Court in the subject petition.

4. Learned counsel for the petitioner submits that further cross-examination of the afore-mentioned witnesses is imperative to unearth the truth and determine the age of the victim at the time of the incident. In that light, he would submit that one opportunity be granted to the petitioner to further cross-examine the aforesaid witnesses. Learned counsel would further submit that an undertaking was rendered by the petitioner before the co-ordinate Bench, while seeking bail, that he would co-operate with the disposal of the case.

5. Learned HCGP submits that in the light of the undertaking, the order of the concerned Court cannot be found fault with. Therefore, he seeks 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 lie in a narrow compass. At this juncture, the issue is, whether the application filed by the petitioner under Section 311 of the Cr.P.C. should merit consideration favourably or otherwise. The petitioner is facing proceedings for the afore-quoted offences. In the event of conviction, the punishment would go on for more than 10 years. In such cases, it is necessary to bring home the truth with regard to the innocence or otherwise of the petitioner, as a criminal trial is an expedition towards the discovery of truth. This is the purport of Section 311 of the Cr.P.C. as interpreted by the Apex Court in the case of VARSHA GARG v. STATE OF MADHYA PRADESH reported in 2022 SCC OnLine SC 986.

8. The only impediment would be that the victim should not be less than 18 years as on the date the application is filed. As on the date of the incident, the victim was 17 years and today, the victim is 19 years old. This Court, in the case of PAVAN v. STATE¹2024 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-narrated facts are not in dispute. The issue lies in a narrow compass. The cross-examination of PWs.1 and 2 happens at the outset on 11.08.2022 and 28.12.2022. It is the case of the petitioner that during the cross-examination, the victim had deposed that she did not know what was written by the police while recording the statement. It is after this the petitioner files an application under Section 311 of the Cr. P.C. to recall both the father and the victim for further cross-examination. The application is rejected on the score that the victim cannot be repeatedly called for cross-examination owing to the Bar under Section 33(5) of the POCSO Act. Section 33(5) of the POCSO Act, reads as follows:

“33(5).

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