Recall of a witness under Section 311 Cr.P.C. cannot be granted merely to fill lacunae or at the leisure of the defense, especially when a child victim is involved, as protected by Section 33(5) of the POCSO Act.

Criminal Original Petition filed under Section 482 of Cr.P.C./528 of BNSS, 2023, to call for the records relating to the proceedings of the order in CMP.No.121 of 2025 in Spl.S.C.No.94 of 2022 (wrongly mentioned as Spl.S.C.No.94 of 2025) on the file of the Special Court for Exclusive Trial of Cases under POCSO Act, Villupuram, Villupuram District.

ORDER

This criminal original petition has been filed seeking quashment of the order dated 29.07.2025 made in CMP.No.121 of 2025 in Spl.S.C.No.94 of 2022 (wrongly mentioned as Spl.S.C.No.94 of 2025 in the prayer portion in the affidavit and petition and hence, this Court proceeds to refer to the case with the correct number, namely, Spl.S.C.No.94 of 2022) by the learned Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Villupuram District.

2. The case of the petitioner is that he is an accused facing trial in Spl.S.C.No.94 of 2022 for the offences under Sections 354A , 341, 294(b) and 323 (3 counts) of IPC, Sections 9(m) r/w. 10 of the POCSO Act, 2012 and Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act before the learned Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Villupuram, Villupuram District and he filed a petition under Section 311 of Cr.P.C./348 of BNSS in CMP.No.121 of 2025 seeking recall of P.Ws.1 to 3 for cross-examination. However, the trial court, vide impugned order dated 29.07.2025, though allowed the said petition in respect of P.Ws.2 & 3, dismissed the said petition in respect of P.W.1. Challenging the same, the present petition has been filed.

3. Learned counsel for the petitioner submitted that since certain necessary questions were not put to the victim girl/P.W.1 during the course of cross-examination, and as P.Ws.2 & 3 were not at all cross-examined due to some personal inconvenience, the petitioner filed a petition as aforesaid, seeking recall of P.Ws.1 to 3. The trial Court, vide order dated 29.07.2025, though allowed the said petition in respect of P.Ws.2 & 3, dismissed the same in respect of P.W.1/victim girl, without considering the necessity for cross-examining her, which is not sustainable. He further submitted that the petitioner has certain valid questions to be put to P.W.1/victim girl and the same is necessary to unfold the defence, enabling the trial court to arrive at a just and reasonable decision and if the petitioner is not permitted to recall PW1 for further cross-examination, he would be put to grave hardship. He also submitted that P.W.2 had already turned hostile and P.W.3, who is none other than the father of the victim girl is only a hearsay witness. Hence, he prayed to set aside the impugned order dated 29.07.2025.

4. Per contra, the learned Government Advocate (Crl. Side) appearing for the respondent submitted that the P.W.1/victim girl was aged only about 11 years at the time of occurrence and now she is aged about 15 years. He further submitted that as per Section 33(5) of the POCSO Act, the Special Court shall ensure that the child is not called repeatedly to testify in the Court. Accordingly, the trial court had rightly dismissed the recall petition filed by the petitioner under Section 311 of Cr.P.C., only in respect of P.W.1, while allowing the same in respect of P.W.2 & P.W.3, which cannot be said to be erroneous. Hence, he prayed for dismissal of this petition.

5. Heard learned counsel on either side and perused the materials available on record.

6. The facts