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CRL OP(MD). No.2240 of 2026

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Dated : 05/02/2026

CORAM

THE HONOURABLE MRS. JUSTICE L. VICTORIA GOWRI

CRL OP(MD). No.2240 of 2026

Gurusamy ... Petitioner

Vs

State of Tamilnadu Rep by

Inspector of Police, Awps-Andipatti,

Theni District.

Cr.No.35/2023. ... Respondent

PRAYER :-

To call for the records and set aside the order dated 06.01.2026 passed

in Cr.MP.No.01/2026 in Spl.SC No.03/2024 on the file of the learned

court of Principal Special Court for Exclusive Trial of Cases under

POCSO Act, Theni, Theni District.

For Petitioner : Mr. P.Senguttuarasan,

Advocate.

For Respondent : Mr.S.Ravi

Additional Public Prosecutor

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CRL OP(MD). No.2240 of 2026

ORDER

This Criminal Original Petition is filed to call for the records and

set aside the order dated 06.01.2026 passed in Cr.MP.No.01/2026 in

Spl.SC No.03/2024 on the file of the learned court of Principal Special

Court for Exclusive Trial of Cases under POCSO Act, Theni, Theni

District.

2. Learned counsel for the petitioner submitted that the petitioner

is the sole accused in the case which is pending trial in Spl.S.C.No.3 of

2024. He had filed a petition under Section 348 of BNS seeking to recall

PW.2 and PW.12 for cross examination. However, the same was

negatived and rejected by the learned trial court. Seeking indulgence of

this Court, the present petition came to be filed.

3. Learned Additional Public Prosecutor appearing for the

respondent, on instructions, submitted that P.W.2, who is sought to be

recalled for cross examination is the Victim and P.W.12 is the

investigating officer. Both the witnesses were examined in chief before

the trial Court on 24.02.2025. But the learned counsel appeared for the

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CRL OP(MD). No.2240 of 2026

petitioner before the trial Court, failed to cross examine them on the

same day. Having not preferred to cross examine both the witnesses on

the same day of examination in chief, now they preferred a petition to

recall the witnesses. Under Section 348 of BNS, it is a settled

proposition of law that in POCSO matters, the victim should not be

subjected to appear before the trial court for deposing evidence again and

again and pointed out that there is no infirmity in the impugned order and

pressed for dismissal of this Criminal Original Petition.

4. Heard the learned counsel on either side and perused the

materials available on record.

5. A plain reading of the impugned order would make it clear that

PW-2, the victim child was examined in chief on 24.02.2025. She has

clearly deposed that the petitioner had committed penetrative sexual

assault. But she was not cross examined by the petitioner on the same

day, whereas PW-12, one Veeramma who is the mother of PW-2 victim

child, was cross examined on 24.02.2025 that is on the date when the

victim was examined in chief. This shows that the learned trial Court had

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CRL OP(MD). No.2240 of 2026

properly conducted the trial and that sufficient opportunity was availed

by the defense to cross examine PW-2, but he had preferred not to cross

PW-2 on the said date. Further, the learned trial court has also observed

that the present petition has been filed after a prolonged gap of 10

months from the date of chief examination and only to protract the

proceedings the present application has been filed and the same was

promptly dismissed by the trial Court.

6. It is needless to state that as per the mandate of Section 33(5) of

the POCSO Act 2012, a victim child cannot be repeatedly called before

the court, as it would amount to second victimization. Accordingly, I

donot find any demerits in the trial court decision to negate the

petitioner's application seeking permission to recall PW-2 for cross

examination.

7. However, to ensure fair trial, the petitioner's application seeking

to recall PW 10