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2026 Supreme(Online)(Mad) 26375
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R.VIJAYAKUMAR, J
Esakki Muthu – Appellant
Versus
The State of Tamilnadu, Rep by the Inspector of Police, AWPS Kanniyakumari Police Station – Respondent
Crl.OP.(MD)No.6446 of 2026|Spl.S.C.No.82 of 2022|Crl.M.P. No.50 of 2026
For the Appellants/Petitioners: M/s.C.Muthusaravanan
For the Respondents: Mr.R.Meenakshi Sundaram Additional Public Prosecutor
Section 33(5) POCSO inapplicable to adult victims; recall under Section 311 Cr.P.C. permitted if no delay.
Headnote:The petitioners challenged the rejection of their Section 311 Cr.P.C. application for recalling witnesses P.W.1 to P.W.4 in a POCSO case, citing absence of counsel during prior cross-examination. The trial court invoked Section 33(5) of the POCSO Act, 2012, barring recall due to repeated testimony of the child victim. The High Court found the victim had attained majority, rendering Section 33(5) inapplicable, and noted the prompt filing of the application without delay. Key issue: Applicability of Section 33(5) POCSO Act to an adult victim and permissibility of recall under Section 311 Cr.P.C. The court relied on precedent emphasizing prejudice from unrebutted crucial witness testimony when the victim no longer qualifies as a 'child' under the Act, holding cross-examination essential to rebut presumptions. The impugned order was set aside, petition allowed, directing process memo filing within three days and same-day completion of cross-examination with no further chances.
| Table of Content |
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| 1. petition challenges rejection of section 311 cr.p.c. recall application. (Para 1 , 2) |
| 2. trial court rejected recall invoking pocso section 33(5). (Para 3) |
| 3. victim attained majority; section 33(5) inapplicable; relied on precedent. (Para 4) |
| 4. order set aside; recall permitted with strict timelines. (Para 5) |
ORDER
The present petition has been filed by the Accused Nos.3 & 4 in Spl.S.C.No.82 of 2022, on the file of the learned Special Judge for POCSO Act Cases, Nagercoil, seeking to set aside the order passed in Crl.M.P.No.50 of 2026, wherein, the application filed by the petitioners under Section 311 of Cr.P.C. has been rejected.
2. The P.W.1 to P.W.4 were cross examined on 07.01.2026 and it was posted on 27.01.2026 for examination of further witnesses. On the said date, 311 application was filed on the ground that on 07.01.2026 due to the absence of the learned Counsel for the accused persons, P.W.1 to PW.4 could not be cross examined. However, the said petition has been dismissed under the impugned order dated 24.02.2026.
3. A perusal of the impugned order reveals that the learned Judge has invoked Section 33(5) of the POCSO Act and has rejected the application on the ground that the child has repeatedly called to testify before the Court.
4. The learned Counsel appearing for the petitioners submitted that the victim girl has attained majority and therefore, the bar under Section 33(5) cannot be invoked. That apart, he further submitted that on the next date of hearing itself, 311 application has been filed and therefore, there was no delay on the part of the accused persons. He also relied upon the decision of this Court in S.Ganeshan Vs. State represented by the Inspector of Police, reported in 2022 LiveLaw (Mad) 116. Paragraph No.11 has held as follows:-
“In view of the above, a heavy burden is caused on the petitioner to rebut the presumption which operates against him. As stated above, P.W.2, P.W.7 & P.W.8 are crucial witnesses. If the witnesses are not cross examined, the evidence stands unrebutted and it would amount to a case of no defence resulting in grave prejudice to the petitioner. However, in this case, the victim is now aged about 21 years and she will not fall within the definition of “child” so as to Section 33(5) of the POCSO Act, 2012.”
5. Considering the above said facts, the order impugned in Crl.M.P.No.50 of 2026 in Spl.S.C.No.82 of 2022, is hereby set aside and the Criminal Original Petition stands allowed. The petitioners are directed to file the process memo within a period of three days from the date of receipt of a copy of this order. It is further directed that the cross-examination shall be completed on the same day on which the witnesses appear. It is made clear that no further chance will be granted to the accused persons.
