IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.02.2024 CORAM THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH Crl.O.P.No.4283 of 2024 Sathya ... Petitioner Vs.

The Inspector of Police, AWPS Mamallapuram, Kancheepuram. ... Respondent Prayer:

Petition filed under Section 482 of Cr.P.C., seeking to set aside the order dated 14.12.2023 passed in Crl.M.P.No.1214 of 2023 in Spl.S.C.No.33 of 2022, on the file of the learned Sessions Judge, Special Court for Exclusive Trial of Case under POCSO Court, Chengalpattu and allow the recall petition with the condition to complete the cross examination of witnesses within stipulated time fixed by this Hon'ble Court.

For Petitioner : Mr.S.N.Subramani For Respondent : Mr.A.Damodaran Additional Public Prosecutor

O R D E R

This criminal original petition has been filed challenging the order passed by the Court below dismissing the application filed in Crl.M.P.No.1214 of 2023 under Section 311 of Cr.P.C. to recall P.W.1 to P.W.10 for cross examination.

2.The petitioner is facing trial before the Court below for offence under Sections 4, 6 of POCSO Act and Section 506(2) of IPC. The case of the prosecution is that the petitioner had sexually abused P.W.2 who is the victim girl and P.W.3 who is the victim boy. The prosecution had examined P.W.1 to 10 and for reasons best known to the petitioner, none of these witnesses were cross examined. Infact, when P.W.1 and P.W.2 were examined in chief, the petitioner had sought for deferring the cross examination by filing application under Section 231 (2) of Cr.P.C. and the same was dismissed on the same day. Such dismissal was not put to challenge.

3.The case was at the stage of examination of further witnesses on the side of the prosecution. At that stage, the present application came to be filed to recall P.W.1 to P.W.10 for cross examination. The Court below on finding that no valid reasons have been assigned by the petitioner for not cross examining the witnesses when they were examined in chief, dismissed the application. Aggrieved by the same, the present petition has been filed before this Court.

4.Heard the learned counsel for the petitioner and learned Additional Public Prosecutor appearing on behalf of the respondent.

5.In the considered view of this Court, recalling witnesses cannot be done in a routine manner and the accused person must give valid reasons as to why he was not able to cross examine the witnesses on the day when they were examined in chief. It is more so in cases of sexual abuse involving minors. Section 33(5) of the POCSO Act was brought in only for this purpose and the Legislature wanted to ensure that the child does not undergo the mental turmoil once again by recollecting the incident.

6.In the instant case, the petitioner was present with the counsel whenever the prosecution witnesses were examined in chief. However, they did not care to cross examine any of the witnesses. Casually an application came to be filed on 01.09.2023 under Section 311 of Cr.P.C. to recall P.W.1 to P.W.10 for cross examination. On going through the application it is seen that the only reason assigned was that a new counsel has been engaged and therefore, the prosecution witnesses must be recalled for cross examination. The law is now too well settled that engaging a new counsel is not a ground for recalling the witnesses.

7.During the last hearing, this Court directed the learned counsel for the petitioner to identify some important witnesses so that this Court can consider recalling those witnesses for cross examination. This is in view of the fact that the petitioner is facing trial for serious charges.

8.When the matter was taken up for hearing today, the learned counsel for the petitioner submitted that the petitioner wants to recall P.W.1 to P.W.5 and also P.W.8 and P.W.10.

9.In so far as P.W.2 and P.W.3 are concerned, they are the victim girl and boy. They were examined in chief on 03.05.2023 and for some reason, the petitioner did not cross examine those w