Advocate boycott justifies recall of child victim witnesses for cross-examination under Section 311 CrPC in POCSO cases despite Section 33(5).

ORDER

The petitioner, who is arrayed as accused in Spl S.C. No.102 of 2023, for the offence under Sections 366, 354B, 376(3), 511, 506(ii) and Section 7 r/w. 8, 6 r/w. 18 of POCSO Act 2012 filed a petition in Crl.M.P. No. 344 of 2026 to recall PW1 to PW3. The Trial Court by order dated 18.03.2026 dismissed the said petition. Aggrieved over the same, the present petition is filed.

2. The contention of the petitioner is that there are 12 witnesses in this case. All the witnesses, except PW.1 to PW.3, were cross examined then and there without any delay. PW1 is the victim and PW2 and PW3 are the mother and father of the victim respectively, were examined in chief on 23.07.2025. On that day, since there was an Advocate boycott, the learned counsel for the petitioner was not permitted to enter the Court hall and therefore, he had not cross-examined the witnesses PW.1 to PW.3. With regard to other witnesses, they have been cross examined then and there. After completing the evidence by the Investigating Officer, a petition under Section 311 Cr.P.C. was filed and it was dismissed citing the judgment of the Supreme Court in Vinothkumar vs. State of Punjab reported in 2015(1) MLJ (CRL) 288 and citing Section 33 (5) of the POCSO Act as well as High Court’s circular in ROC No.543/RG.2023/POCSO, dated 12.07.2024.

3. The learned counsel for the petitioner submitted that the Trial Court while dismissing the recall petition relied upon the decision of Vinothkumar case, but the same is not applicable to the facts of the present case, as the same pertains to the Prevention of Corruption Act. With regard to Section 33 (5) of the POCSO Act, it is the contention of the learned counsel for the petitioner that it is general in nature to ensure that the child witness is not repeatedly called for evidence to avoid physical and mental torment. Likewise, High Court’s circular will be applicable, only when the trial is conducted in usual course and normal circumstances.

4. The learned counsel for the petitioner further by referring to deposition of PWs.1 to 3 submitted that it was not recorded as if opportunity was given and the counsel failed to cross examine the witness. It was only recorded as “no cross”. Further, the learned counsel on the merits of the case submitted that the petitioner and the victim and are relatives having adjacent land and there was a family dispute with regard to property. Therefore, the petitioner has been falsely implicated in this case.

5. The learned counsel further submitted that PW1 is the victim and PW2 and PW3 are the parents of the victim. The admitted case is that they had gone to a Temple on that day and returned in the night hours. The incident was informed by PW1 that when the petitioner attempted to misbehave with PW1 and made a bad touch, it was PW4 another cousin, came their and rescued the victim. However, PW4 has deposed that on seeing him, the petitioner ran away. However, PW1's case is an exaggerated version. Thus, the evidence of PW1 and PW4 are contradictory.

6. The learned Additional Public Prosecutor submitted that PWs.1 to 3 were examined-in-chief on 23.07.2025. Thereafter, rest of the witnesses have been examined. The petitioner has not filed any petition to defer the cross and gave any reason at the time of examination, but after the end of trial, when Investigating Officer evidence was completed, the present petition has been filed. Therefore, the present petition is filed only to protract the trial. He further submitted that as per Section 33 (5) of POCSO Act, the victim cannot be called again and again