Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2026 Supreme(Online)(Mad) 33215

IN THE HIGH COURT OF JUDICATURE AT MADRAS
R.VIJAYAKUMAR, J
Ranjithkumar @ Mariya Ranjith – Appellant
Versus
State of Tamilnadu, Rep by Inspector of Police, AWPS-Kanyakumari, Kanyakumari District – Respondent
Crl.OP.(MD)No.7343 of 2026|Crl.M.P(MD)No.7883 of 2026|Crime No.30/2020|Spl.SC.No. 32/2021|Crl.M.P.No.69/2026

Advocates:
For the Appellants/Petitioners: M/s.M.Arikaran
For the Respondents: Mr.R.Meenakshi Sundaram Additional Public Prosecutor

Section 33(5) POCSO not absolute bar to witness recall if no delay or harassment intent.

Headnote:The petition challenges the trial court's rejection of recall of witnesses under Section 348 BNSS, relying on Section 33(5) POCSO Act in a case involving alleged offences under POCSO Act. Essential facts include chief examination of P.W.4 and P.W.5 on 29.12.2025, inability to cross-examine due to advocates' boycott, and application filed on 04.02.2026. Court finds no delay and no intent to harass victim. Issue framed as whether Section 33(5) POCSO Act bars recall when application filed promptly post-boycott. Ratio: Section 33(5) not absolute bar; object is to prevent repeated harassment of child victim, absent here as recall sought next hearing date and other witnesses cross-examined. Petition allowed; trial court order set aside; petitioner permitted single opportunity to cross-examine P.W.4 and P.W.5.

Table of Content
1. background of witness examination and recall application rejection (Para 2 , 3)
2. petitioner's contention on no fault and timely recall (Para 4)
3. court sets aside order allowing recall (Para 5 , 6)
4. single opportunity granted; petition disposed (Para 7 , 8)

ORDER

The present petition has been filed by the sole accused in Spl.SC.No.32 of 2021, seeking to set aside the order passed by the Special Court for exclusive trial of cases under POCSO Court, Nagercoil, in Crl.M.P.No.69 of 2026, wherein the request of the petitioner under Section 348 of BNSS has been rejected.

2. The petitioner is an accused alleged to have committed offences under the POCSO Act. Out of 6 witnesses, P.W.1 to P.W.3 have already been examined and cross examined by the petitioner. P.W.4 and P.W.5 were chief examined on 29.12.2025. Due to Advocates boycott, these witnesses could not be cross examined on the same date.

3. The application has been filed on 04.02.2026, seeking to recall P.W.4 and P.W.5. This application has been dismissed by the trial Court primarily relying upon Section 33 (5) of the POCSO Act. Challenging the same, the present petition has been filed.

4. According to the learned Counsel appearing for the petitioner, he was not at fault and his Counsel could not appear on the said date and therefore, P.W.4 and P.W.5 could not be cross examined. He further submitted that the other witnesses have already been cross examined by the petitioner. He further contended that Section 33 (5) is not an absolute bar and only the object is not to harass the victim child again and again. In the present case, the present application has been filed on the next date of hearing and therefore, there is no delay on the part of the petitioner. He further submitted that the case is posted on 20.04.2026 and he is ready to cross examine P.W.4 and P.W.5 on the same date.

5. I have considered the submissions made on either side and perused the materials available on record.

6. Considering the narration of the events above, the order passed by the Special Court for exclusive trial of cases under POCSO Court, Nagercoil, in Crl.M.P.No.69 of 2026, dated 17.03.2026, is hereby set aside and the application of the petitioner seeking to recall of P.W.4 and P.W.5 is hereby allowed.

7. The petitioner shall be permitted to cross examine P.W.4 and P.W.5 on a single day. It is made clear that no further opportunity will be granted to the petitioner. Batta shall be filed by the petitioner within 3(three) days from the date of receipt of a copy of this order.

8. With the above said observations, this Criminal Original Petition stands allowed. Consequently, connected miscellaneous petition is also closed.

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