Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2026 Supreme(Online)(Mad) 33218

IN THE HIGH COURT OF JUDICATURE AT MADRAS
R.VIJAYAKUMAR, J
Vigneshwaran – Appellant
Versus
State of Tamilnadu, Rep by the Inspector of Police, G.Vilakku Police Station, Theni District – Respondent
Crl.OP.(MD)No.7444 of 2026 | Crl.M.P(MD)No.8037 of 2026 | Spl.SC.No.35/2025 | Crl.MP.No.533/2025 | Crime No.189/2024

Advocates:
For the Petitioner: M/s.S.G.L.Rishwanth
For the Respondent: Mr.R.Meenakshi Sundaram Additional Public Prosecutor

Prompt recall application under BNSS Section 348 allowed despite POCSO Section 33(5) for ends of justice, limited to one chance.

Headnote:The petition challenges the trial court's rejection of recall of PW1 and PW2 under Section 348 BNSS, citing Section 33(5) POCSO Act. Accused failed to cross-examine witnesses on chief examination date due to counsel's inconvenience. Court finds application filed promptly on next hearing date. Court holds that to meet ends of justice, one opportunity for cross-examination permissible despite POCSO restrictions. Issues framed: Whether counsel inconvenience justifies recall under BNSS Section 348 given POCSO Section 33(5) bar? Ratio: Prompt application post-chief examination warrants single chance for cross-examination to ensure justice, balancing victim protection. Petition allowed; trial court order set aside; cross-examination directed on single day with no further chances.

Table of Content
1. background of failed cross-examination and trial court rejection. (Para 2)
2. petitioner's counsel inconvenience justification. (Para 4)
3. court grants one-time recall for justice. (Para 5)
4. order set aside with strict single-day cross-examination. (Para 7)

ORDER

The present petition has been filed by the sole accused in Spl.S.C.No.35 of 2025, on the file of the Special Court for exclusive trial of cases under POCSO Act, Theni, seeking to set aside the order passed under Section 348 of BNSS, wherein the request of the petitioner to recall PW1 and PW2 have been rejected.

2. A perusal of the records reveal that the petitioner is accused of offences under the POCSO Act. P.W.1 and P.W.2 were chief examined on 06.10.2025 and on the said date, they were not cross examined. The present application has been filed on 15.10.2025(on the next date of hearing) seeking to recall P.W.1 and P.W.2. This application has been rejected primarily by the trial Court on the ground that the Counsel being engaged before a different Court is not a ground for entertaining an application under Section 348 of BNSS.

3. The Court has further pointed out that there is a bar under Section 33(5) of thePOCSO Act. Therefore, the victim girl cannot be called again and again for cross examination. Challenging the same, the present petition has been filed.

4. According to the learned Counsel appearing for the petitioner, only due to inconvenience of the Counsel on the said date, P.W.1 and P.W.2 could not be cross examined. According to him, PW.1 is the father of the victim. P.W.2 is the victim child. He further submitted that they are ready to complete the cross examination on the date of appearance of P.W.1 and P.W.2.

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

6. Considering the fact that P.W.1 and P.W.2 were chief examined on 06.10.2025 and the next date of hearing, namely, on 15.11.2025. The present application has been filed, in order to meet the ends of justice, the petitioner may be granted one more chance to cross examine P.W.1 and P.W.2.

7. In view of the above said facts, the order in Cr.M.P.No.533 of 2025 dated 02.12.2025 is hereby set aside and the petition stands allowed. The petitioner is directed to file the Batta within a period of three days from the date of receipt of a copy of this order. The petitioner is further directed to complete the cross examination on the date of appearance of P.W.1 and P.W.2 and complete the cross examination on a single day. It is made clear that no further opportunity would be granted to the petitioner.

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