1. Petition against dismissal of recall application for further cross-examination of prosecution witnesses under Section 311 Cr.P.C. (Para 1 , 2 )
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2026 Supreme(Telangana) 331
HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
J. Sreenivas Rao, J.
Bandari Sampath - Petitioner
Versus
The State of Telangana, Represented by Public Prosecutor and another - Respondents
Criminal Petition No. 16007 of 2025
Decided On : 10-03-2026
Advocates:
Advocate Appeared:
Petitioner Counsel: N. Murali
Respondent Counsel: Jithender Rao Veeramalla (Additional Public Prosecutor); P. Sravan Kumar
Advocate Appeared:
Petitioner Counsel: N. Murali
Respondent Counsel: Jithender Rao Veeramalla (Additional Public Prosecutor); P. Sravan Kumar
Recall of witnesses under Section 311 Cr.P.C. (Section 528 BNSS) cannot be granted solely due to ineffective representation by previous counsel or to fill defense lacunae, particularly when Section 33(5) of the POCSO Act prohibits the repeated summoning of child witnesses.
Headnote:(A) Code of Criminal Procedure, 1973 - Section 311 / Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 528 - Protection of Children from Sexual Offences (POCSO) Act, 2012 - Section 33(5) - Recall of witnesses - Power to recall witnesses is intended to enable the Court to arrive at the truth and render a just decision, but such power must be exercised cautiously - Recall cannot be permitted merely on the ground that previous counsel failed to effectively cross-examine witnesses or to fill up lacunae in the defense - Under Section 33(5) of the POCSO Act, a child witness cannot be called repeatedly to testify in Court to prevent prejudice and hardship to the victim. (Paras 9, 10, 13, 15, 17)
(B) Criminal Procedure - Scope of recall - Witness cannot be recalled simply because a new counsel has been engaged or the earlier counsel's cross-examination was perceived as ineffective - Repeated recall of witnesses causes unnecessary delay in trial and is impermissible if it serves to rectify omissions by the defense counsel. (Paras 14, 16)
Facts of the case:
The petitioner, facing charges under the POCSO Act and the IPC, sought to recall three prosecution witnesses for further cross-examination after evidence had been closed and the matter was posted for arguments. The petitioner contended that while in judicial custody, he could not provide full instructions to his previous counsel, leading to the omission of material points. The trial court dismissed the application. It was noted that the petitioner had previously succeeded in recalling two of the witnesses, but had challenged the conditional nature of that order in a revision petition, which was dismissed and attained finality.
Findings of Court:
The court found that the witnesses had already been cross-examined at length. The argument that the previous counsel was ineffective is not a valid legal ground for recalling witnesses. Furthermore, the statutory prohibition under the POCSO Act against repeated testimony by child victims outweighs the petitioner's request for further examination.
Issues: Whether the power to recall witnesses under Section 311 Cr.P.C. (Section 528 BNSS) can be invoked on the grounds of ineffective representation by previous counsel, particularly in the context of child witnesses protected under the POCSO Act.
Ratio Decidendi: The court ruled that the power to recall witnesses should not be used to fill gaps in the defense case or rectify counsel's omissions. This is especially stringent in POCSO cases where Section 33(5) mandates that child victims should not be repeatedly called to testify. Since the witnesses were already examined extensively and the matter was ripe for arguments, the recall request was an attempt to fill lacunae and delay the trial.
Result: Criminal petition dismissed.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
Table of Contents
2. Petitioner sought recall due to ineffective cross-examination while in custody; respondent argued it was a delay tactic after evidence closed. (Para 4 , 5 )
3. Petitioner already allowed recall of PWs.1 and 2; further recall on same ground not permitted, especially under POCSO Act. (Para 7 , 8 , 9 , 10 , 11 )
4. Recall of witnesses is not permitted to fill lacunae or on ground of ineffective cross-examination by previous counsel, per Section 33(5) POCSO Act. (Para 9 , 10 , 13 , 14 , 15 , 16 , 17 )
5. Criminal petition dismissed; no illegality or irregularity found in the impugned order. (Para 18 , 19 )
6. Can a witness be recalled under Section 311 Cr.P.C. solely because the previous counsel did not effectively cross-examine them?
No. A witness cannot be recalled merely on the ground that a new counsel has been engaged or that the earlier counsel did not conduct cross-examination effectively, as this would allow filling lacunae. (Para 9 , 13 , 14 , 15 , 17 )
7. Does Section 33(5) of the POCSO Act restrict the recall of a child witness?
Yes. Section 33(5) of the POCSO Act mandates that a child witness should not be called repeatedly to testify before the court, thereby restricting recall applications. (Para 10 , 13 , 16 )
8. Is the power to recall witnesses under Section 311 Cr.P.C. absolute and without limitation?
No. The power under Section 311 Cr.P.C., while wide, must be exercised cautiously and only when essential for the just decision of the case, not for filling lacunae or when witnesses are already cross-examined at length. (Para 12 , 14 , 16 )
ORDER :
J. Sreenivas Rao, J.
This Criminal Petition has been filed aggrieved by the order passed by the learned Special Sessions Judge for Trial of Cases under the Protection of Children from Sexual Offences Act (I-Additional Sessions Judge), Hanumakonda (for short, ‘the learned Sessions Judge’) in Crl.M.P.No.708 of 2025 in Sessions Case (POCSO) No.25 of 2024 dated 28.11.2025, whereunder the application filed by the petitioner seeking for recall of PWs.1, 2 and 11 for the purpose of further cross-examination was dismissed.
2. Brief facts of the case :
2.1. On 21.03.2024, respondent No.2/de facto complainant lodged a complaint before KUC Police Station stating that due to matrimonial disputes with her first husband, she was residing at her parental house at Beemaram, Hanumakonda, during the year 2018, the petitioner, who was then working at Wardhannapet, came into contact with her and developed acquaintance with her. Taking advantage of her vulnerable situation, the petitioner allegedly promised to marry her and thereafter married her. Since then, they were living together at Beemaram, Hanumakonda. During November 2023, her daughter sustained a fracture to her leg after falling from the staircase and remained bedridden. Taking advantage of the situation, the petitioner allegedly misbehaved with her daughter on different occasions by touching her inappropriately and making indecent advances. When the minor resisted and threatened to inform her grandparents, the petitioner allegedly threatened her with dire consequences. Basing on the complaint lodged by her, a case was registered at KUC Police Station vide Crime No.158 of 2024 for the offences punishable under Sections 376(1), 323 and 506 of IPC and Section 3 read with 4 of the POCSO Act. The petitioner, who was then working as Inspector of Police, Cyber Cell, Jayashanker Bhupalpally District, was arrested on 21.03.2024 and produced before the Court and was remanded to judicial custody. After completion of investigation, the police filed charge sheet on 15.05.2024 and the case was taken on file as S.C. No.25 of 2024 on the file of the Court of the Special Sessions Judge for trial of cases under the Protection of Children from Sexual Offences Act (I Additional Sessions Judge), Hanumakonda.
2.2. During the course of trial, prosecution witnesses were examined. In order to effectively cross-examine certain material witnesses and to bring out relevant facts necessary for just adjudication of the case, the petitioner filed a petition under Section 311 Cr.P.C. in Cr.M.P. No.708 of 2025 in S.C. No.25 of 2024 seeking recall of P.Ws.1, 2 and 11 for further cross-examination. However, the learned Special Sessions Judge for trial of cases under POCSO Act-cum-I Additional Sessions Judge, Hanumakonda, by order in Crl.M.P. No.708 of 2025, dismissed the said petition. Being aggrieved by the said order passed by the learned trial Court, the petitioner has filed the present criminal petition.
3. Heard Mr. V. Raghunath, learned Senior Counsel representing Mr. N. Murali, learned counsel for the petitioner, Mr. P. Sravan Kumar, learned counsel for respondent No.2 and Mr. Jithender Rao Veeramalla, learned Additional Public Prosecutor appearing for respondent No.1 State.
4. Submissions of learned counsel for the petitioner :
4.1. Learned Senior Counsel for the petitioner submitted that the cross-examination of PWs.1, 2 and 11 were concluded, when the petitioner was in judicial custody. Due to the same, the petitioner has not interacted with his previous counsel and he could not disclose full information to the previous counsel, thereby important questions were not put to PWs.1, 2 and 11. Many material points could not be brought on record in order to prove of the innocence of the petitioner and disprove the charges levelled against him, it is just and essential to recall PWs.1, 2 and 11 for further cross-examination and better appreciation of the material facts on record, just disposal of the matter and to
