IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE MISC. CRIMINAL CASE No. 48904 of 2025 VISHAL RAJAK Versus THE STATE OF MADHYA PRADESH AND OTHERS Appearance:

Shri Rajesh Kumar Shukla - Advocate for the petitioner [P-1].

Shri A P S Tomar Ga appearing on behalf of Advocate General[r-1].

Reserved on : 12.11.2025 Pronounced on : 10/12/2025 This petition having been heard and reserved for orders, Hon’ble Shri Justice Milind Ramesh Phadke, Judge pronounced the following:

ORDER The petitioner has filed the present petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, challenging the order dated 17.09.2025 passed by the learned Special Judge (POCSO Act), District Datia, in Special Case No. 44/2023. By the impugned order, the learned trial Court has dismissed the application preferred by the petitioner under Section 311 Cr.P.C. / Section 348 of BNSS, 2023 seeking recall of certain prosecution witnesses for further cross-examination.

2. The prosecution case, in brief, is that on 21.10.2023, the complainant, Thakurdas Kushwah, went to the police station and made a verbal report that in the morning of 21.10.2023 at about 8:00 AM, he and his family had gone to their agricultural field to uproot groundnuts. His son, Manish, who studies at Datia, had also left for coaching, leaving the complainant’s daughter (the prosecutrix) at home. When Manish returned from coaching to their home in Nauner, he found the outer door closed. On entering inside, he saw that nobody was present in the house. He then called his parents and informed them that his sister was missing. The complainant and his wife immediately returned home and found that their daughter was indeed not there. They made inquiries with the neighbours, who informed them that they had seen Vishal Rajak, son of Patiram Rajak, standing in front of the complainant’s house. Based on this information, the complainant suspected that the petitioner, Vishal Rajak, had abducted or enticed his daughter. On the basis of this report, an FIR bearing Crime No. 241/2023 was registered at Police Station Jigna, District Datia (M.P.) for the offence punishable under Section 363 IPC against the petitioner. After registration of the FIR, the police conducted investigation, recorded statements of witnesses under Sections 161 and 164 CrPC, and thereafter filed a charge-sheet on 16.12.2023. In the charge-sheet, the police added additional offences under Sections 363 and 376 IPC and Sections 3 and 4 of the POCSO Act. The learned Special Judge (POCSO), District Datia, took cognizance and registered the case as Special Case No. 44/2023.

3. Learned counsel for the petitioner has submitted that during the course of trial, the petitioner filed an application under Section 311 CrPC /

Section 348 BNSS, 2023 (Annexure P/3) seeking recall and re-examination of the prosecutrix. It was submitted that in the charge-sheet as well as in her court statement, the prosecutrix has stated her date of birth as 17.02.2008. However, her marriage was admittedly solemnized on 02.03.2025 at Jhansi (U.P.). If her date of birth is taken as correct, then on the date of marriage she would have been 17 years and 14 days old. This is a material contradiction and requires clarification through re-examination, as it directly affects the foundational facts of age, consent, and applicability of the POCSO Act. The prosecution filed a reply to the application (Annexure P/4) and opposed it on the ground that the prosecutrix had already been cross-examined, and the defence had been given sufficient opportunity earlier. It was contended that the prosecutrix was more than 18 years of age at the time of marriage, and therefore no further examination was required. The learned Trial Court, without properly considering the relevancy and importance of the clarification sought, dismissed the petitioner’s application under Section 311 CrPC / Section 348 BNSS, 2023 vide order dated 17.09.2025 (Anne