In POCSO cases, the statutory bar under Section 33(5) prevents recall of the child victim for further cross-examination, but the same bar does not apply to the parents of the victim, who may be recalled.

THIS CRL.P IS FILED U/S.482(FILED U/S.528 BNSS) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 24.03.2026 PASSED BY THE ADDL DISTRICT AND SESSIONS JUDGE, FTSC I AT CHIKKAMAGALURU IN SPL.C (P) NO.95/2025 AS PER ANNEXURE A AND ALLOW THE APPLICATION FILED U/S.348 OF BNSS.

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

CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA

ORAL ORDER

1. The petitioner is before this Court calling in question the order dated 24.03.2026 in Spl.C.(P) No.95/2025 registered for the offence punishable under Section 348 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.

2. Heard Sri. Girish B. Baladare, learned counsel appearing for the petitioner and Smt. Rashmi Patel, learned High Court Government Pleader appearing for respondent No.1.

3. The petitioner is the accused, who gets embroiled in a crime in crime No.46/2025 registered for the offences punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 ('the POCSO Act' for short) and Sections 137(2), 65(1) and 64(2)(i) of the Bharatiya Nyaya Sanhita (BNS), 2023. The issue in the lis is not with regard to the merit of the matter, but an application being filed by the petitioner seeking recall of the witnesses PW1, PW2 and PW3 for further cross-examination. PW1 is the mother of the victim. PW3 is the father of the victim and PW2 is the victim herself. All the three have been cross-examined earlier. The further cross examination has necessitated in the case at hand to discover the truth. That would not mean that the victim, who is 14 years old, can be recalled for further cross-examination in the light of the statutory bar under Section 33(5) of the POCSO Act.

4. The Apex Court in the case of VARSHA GARG Vs. STATE OF MADHYA PRADESH¹2022 SCC OnLine SC 986, wherein it has held as follows:

"31. Having clarified that the bar under Section 301 is inapplicable and that the appellant is well placed to pursue this appeal, we now examine Section 311 of CrPC. Section 311 provides that the Court “may”:

(i) Summon any person as a witness or to examine any person in attendance, though not summoned as a witness; and

(ii) Recall and re-examine any person who has already been examined.

32. This power can be exercised at any stage of any inquiry, trial or other proceeding under the CrPC. The latter part of Section 311 states that the Court “shall” summon and examine or recall and re-examine any such person “if his evidence appears to the Court to be essential to the just decision of the case”. Section 311 contains a power upon the Court in broad terms. The statutory provision must be read purposively, to achieve the intent of the statute to aid in the discovery of truth.

33. The first part of the statutory provision which uses the expression “may” postulates that the power can be exercised at any stage of an inquiry, trial or other proceeding. The latter part of the provision mandates the recall of a witness by the Court as it uses the expression “shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case”. Essentiality of the evidence of the person who is to be examined coupled with the need for the just decision of the case constitute the touchstone which must guide the decision of the Court. The first part of the statutory provision is discretionary while the latter part is obligatory.

34. A two judge Bench of this Court in Mohanlal Shamji Soni (supra) while dealing with pari materia provisions of Section 540 of the Criminal Code of Procedure 1898 observed:

“16. The second part of Section 540 as pointed