BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 10.12.2025

CORAM

THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI

Crl.O.P.(MD).No.22161 of 2025

and

Crl.M.P.(MD)No.19095 of 2025

Muthusami ... Petitioner / Sole Accused

Vs.

The State of Tamilnadu,

Rep. by, the Inspector of Police,

Sankarankovil AWPS,

Tenkasi District.

(Cr.No.35 of 2024) ... Respondent / Petitioner

Prayer : Criminal Original Petition is filed under Section 528 of BNSS, 2023, to call for the records and duly set aside the order in Unnumbered Cr.M.P. in Spl.S.C.No.319 of 2025 dated 15.10.2025 on

the file of the learned Principal District Court, Tenkasi District.

For Petitioner : Mr.V.Kathirvelan,

Senior Counsel,

For Mr.K.Prabhu

For Respondent : Mr.S.Ravi,

Additional Public Prosecutor

ORDER

The present petition raises an important procedural question concerning the nature of judicial scrutiny required when further investigation during trial is sought under Section 193(9) BNSS, 2023, an issue that must be viewed through the lens of the right of the accused to a fair trial, the principles of natural justice, and the duty of the Court to ensure that prosecution does not fill up lacunae under the guise of further investigation.

2. The controversy pivots around an order of the learned Principal District Judge, Tenkasi, which consists of a single word – “Permitted”, passed on 15.10.2025, allowing a petition purportedly filed under Section 193 BNSS for further investigation after 9 witnesses had already been examined in a POCSO special trial.

Case of the Prosecution:

3. The prosecution alleges that the victim, aged about 17 years, mentally disabled and a stammerer, was sexually assaulted by the petitioner on 15.12.2024 at 2.30 p.m. at her residence. Crime No.35/2024 was registered for offences under Section 6 r/w 5(l), 5(n), 5(k) of POCSO Act, and Section 351(2) of the BNS 2023. A final report was filed and taken cognizance in Spl.S.C.No.319/2024, and

9 witnesses were examined during trial.

4. At the near conclusion of trial, the prosecution filed a petition under Section 193 BNSS for further investigation, essentially to examine the victim, who had not been cited originally in the charge sheet.

5. The learned Principal District Judge, Tenkasi, passed a one-

word order on 15.10.2025 – “PERMITTED”, without issuing notice to the accused, without hearing the defence, and without assigning any reasons. The victim was subsequently examined as PW10 on

19.11.2025.

Submissions:

6. The learned counsel for the petitioner contended that the victim was not cited as a witness in the original charge sheet. Only the interpreter was cited, which cannot substitute the testimony of the victim. The petition under Section 193 BNSS was filed as an afterthought to cure defects exposed during cross-examination. The impugned order is non-speaking, cryptic, and violates natural justice. No copy of the petition was furnished to the defence, no counter was invited. As per Section 193(9) BNSS, further investigation requires judicial application of mind, especially during trial. The victim has 80% mental disability, and the belated attempt to examine her drastically prejudices the accused. Prosecution cannot be permitted to fill up lacunae at the fag end of trial.

7. The learned Public Prosecutor submitted that Section 193(9)

BNSS permits further investigation even during trial. In light of the victim’s mental condition, the earlier Investigating Officer did not examine her properly. A fresh Investigating Officer moved the petition and thereafter examined the victim. Relying on Ramlal Narang v. State¹, it was argued that notice to the accused is not mandatory. The proceedings have already progressed, and therefore, the order must not be interfered with.

1 (1979) 2 SCC 322

8. Heard the learned counsels on either side and carefully perused the materials available on record.

Points for determination:

9. The following issues arise:

(i) Whether the learned Principal District Judge was justified in allowing the petition for further investigat