YOGITHA vs STATE OF KARNATAKA

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Reserved on : 06.08.2026
Pronounced on : 16.10.2026

IN THE HIGH COURT OF KARNATAKA AT BENGALURU



TH
DATED THIS THE 16 DAY OF OCTOBER, 2026
R

BEFORE

THE HON'BLE MR. JUSTICE M.NAGAPRASANNA

WRIT PETITION NO. 10251 OF 2024 (GM-RES)

BETWEEN:

YOGITHA
AGED ABOUT 39 YEARS
D/O M.P.LAKSHME GOWDA
NO.45, SHARADHA NILAYA
SBM COLONY
HASSAN – 573 209.
…PETITIONER







(BY SRI S.SUDHARSAN, ADVOCATE)


AND:

1. STATE OF KARNATAKA
BY KONANKUNTE POLICE STATION
REPRESENTED BY
SPECIAL PUBLIC PROSECUTOR.

2. JAYANTH KUMAR M.H.,
AGED ABOUT 43 YEARS
S/O LATE HOMBALE GOWDA
NO.331 G, PRESTIGE FALCON CITY
ANJANADRI LAYOUT
KONANKUNTE CROSS


Digitally
signed by
CHAYA S A
Location:
High Court
of Karnataka

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BENGALURU – 560 062.
…RESPONDENTS
(BY SRI M.S.SHYAM SUNDAR, SPL.PP FOR R-1;
SRI C.H.HANUMANTHARAYA, ADVOCATE A/W
SMT.ABHINAYA K., ADVOCATE FOR R-2)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
CR.P.C., PRAYING TO PASS AN ORDER TO QUASH / SET ASIDE THE
ORDER DATED 13/03/2024 IN SPL. CC NO. 2065/2022 PENDING
ON THE FILE OF THE FTSC III DISTRICT AND SESSIONS COURT,
BANGALORE, TO SUCH OTHER SPECIAL COURT IN BANGALORE.

THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 06.08.2026, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-

CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA

CAV ORDER

Petitioner-complainant calls in question an order dated
13-03-2024 passed by the concerned Special Court, allowing an
application filed by the accused under Section 311 of the Cr.P.C.
seeking recall of P.W.2, the victim, for further cross-examination.

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2. Facts, adumbrated, are as follows:
2.1. The petitioner is the complainant and the mother of the
nd
victim child. A crime comes to be registered against the 2
respondent-accused in Crime No.166 of 2022 for offences
punishable under Sections 376 and 506 of the IPC and Sections 4, 5
and 6 of the Protection of Children from Sexual Offences Act, 2012
(‘POCSO Act’ for short). The police conduct the investigation and
file a charge sheet for the aforesaid offences. The concerned
Special Court takes cognizance of the aforesaid offences against the
nd
2 respondent, the accused.
2.2.The issue in the lis does not relate to the fulcrum of the
nd
crime, but an application filed by the 2 respondent under Section
311 of the Cr.P.C. seeking recall of the victim for further cross-
examination. The said application comes to be allowed by the
concerned Court, against which the complainant is before this Court
calling in question the said order dated 13-03-2024.
3. Heard Sri S Sudharsan, learned counsel appearing for
petitioner, Sri M S Shyam Sundar, learned Special Public Prosecutor

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appearing for respondent No.1 and Sri C H Hanumantharaya,
learned counsel appearing for respondent No.2.
4. The learned counsel appearing for the petitioner would
vehemently contend that the victim girl was to be cross-examined
on 21-02-2023, on which day the counsel for the accused had
sought time and the cross-examination of the victim was taken as
nil. The first application comes to be filed under Section 311 of the
Cr.P.C. seeking recall of P.Ws.2, 3, 8 and 9 for cross-examination.
P.Ws.2 and 3 were permitted to be further cross-examined by
allowing the application on 16-06-2023. The victim was later cross-
examined on several occasions. On 04-03-2024, the second
application comes to be filed seeking recall of P.W.2, the victim, for
further cross-examination. This is also allowed by the concerned
Court on 13-03-2024, which has driven the present petitioner to
this Court in the subject petition. The co-ordinate bench, in terms
of its order dated 04-04-2024, grants an interim order as prayed
for, till the next date of hearing. The interim order prayed for was
stay of the operation of the order impugned i.e., the order allowing
311 Cr.P.C., application for further cross-examination. Thus, further

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cross-examination of the victim, P.W.2, has not happened. He
would seek that the order be obliterated, as it runs counter to a
plethora of judgments and the very statute itself.
nd
5. Per-contra , the learned counsel appearing for the 2
respondent would vehemently refute the submission of the
petitioner, contending that there is no bar in law for the victim to be
recalled for further cross-examination, as the offence, if proved
against the accused, can lead to imprisonment for a period beyond
10 years. He would contend that certain videos and voice
messages, which are relevant for the adjudication of the case, have
not been confronted to the victim. Therefore, he would submit that
the petition be dismissed and the order of the concerned Court be
sustained.

6. The learned Special Public Prosecutor Sri M.S.Shyam
Sundar, appearing for the State would toe the lines of the learned
counsel of the petitioner-complainant in contending that repeated
summoning of the victim for further cross-examination would, on
the face of it, become contrary to law.

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7. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
8. The afore-narrated facts, the dates and the link in the
nd
chain of events are all not in dispute. The 2 respondent gets
embroiled in the aforesaid crime and the concerned Court takes
cognizance of the offence punishable under Sections 376 and 506 of
the IPC and Sections 4, 5 and 6 of the POCSO Act. On 21-02-2023,
date is fixed for cross-examination of P.Ws.2 and 3. The learned
counsel for the accused does not cross-examine the victim on the
said date and the cross-examination is treated as nil. Here comes
the first application by the accused on 03-06-2023 seeking cross-
examination of the victim, filed under Section 311 of the Cr.P.C.
The concerned Court on 16-06-2023 allows the application and
permits cross-examination of the victim. The operative portion of
the order reads as follows:
“Accused present.

The learned counsel for Accused present.

CW.27 present and examined as PW.10. Ex.P.21 to P.27
documents marked.

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CW.12, CW.25 and CW.26 absent.

The LPP present and submitted that application filed by
the Accused U/s 311 Cr.P.C may be allowed on payment of cost
to the witnesses.

Perused the records along with the application.

Admittedly PW.3 has not been fully cross examined.
Likewise, PW.2, PW.8 and PW.9 has not been cross examined.

Hence, to provide an opportunity to the Accused to
further cross examine PW.3 and to cross examine PW.2, PW.8
and PW.9, application filed by the Accused U/s 311 Cr.P.C is
allowed on payment of cost of Rs. 1000/- to each witness.

Issue SS to PW.2, PW.3, PW.8 and PW.9.

R/by 05.07.2023.”

The victim, who was 8 years old at the time of the incident, was 10
years old when she was called for cross-examination. The victim
was cross-examined on several occasions and the cross-
examination covered her relation with the accused, the CCTV
footages, and the alleged influence of her mother. On 30-09-2023,
the cross-examination of P.W.2, the victim, is recorded as
concluded in full. The victim stood discharged. Thus, ends the first
application.

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SECOND APPLICATION:
9. On 04-03-2024 after about 5 months of the conclusion of
the cross-examination of the victim, the second application comes
to be filed seeking recall of P.W.2 for further cross-examination, on
the ground that material omissions and admissions elicited during
the cross-examination of P.W.3, her mother, had to be confronted
to the victim. The reason for filing the application reads as follows:
“1. That the trial is going on in the above case and the
cross examination of PW-3 is progressing.

2. It is submitted that evidence of PW-2, the victim girl
was examined and cross examined and the witness was
discharged after the same on 30/09/2023.

3. That during the cross examination of PW-3, the mother
of the victim, some material omissions have been elicited by the
defense counsel and also quantifiable suggestions have been put
to her taking admissions.

4. That in view of the omissions and the admissions taken
during the cross examination of PW-3, it becomes inevitable for
the defense counsel to pose the same to PW-2, the victim girl.

5. It has also been noticed that few videos pertaining to
the Accused and PW-2 and voice messages sent by PW-2 to the
Accused have to be confronted with PW-2 which are very
significant from the perspective of adjudication of the instant
case.

6. It is pertinent to state that to extract truth to render
justice further cross examination of PW-2 is expedient.

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7. In the light of the above facts and circumstances
the instant application is preferred seeking permission to
conduct further cross examination of PW-2.

8. It is submitted that underlying object of section 311
of Cr.P.C., is that mere mistake of either party in not recording
valuable piece of evidence before the court that leaves
ambiguity in the statements should not lead to miscarriage of
justice. While exercising discretion under section 311 of the
CrPC. the only determinative factor is whether it is essential to
the just decision of the case or not. Significantly, the expression
that occurs in section 311 is ' at any stage of inquiry or trial
or other proceedings under this code '. It is therefore
pertinent to state that this section confers wide powers to this
Hon'ble Court to summon witness at any stage of the trial.

9 If this application is allowed, no hardship or prejudice
will be caused to the Prosecution. On the other hand, the
Accused will suffer greater hardship, loss and irreparable
damage, if this application is not allowed.”

The concerned Court, by the impugned order dated 13-03-2024,
allows the application. The order reads as follows:
“ ORDERS ON APPLICATION FILED U/SEC.311 OF
CR.P.C.


The accused has filed this application when the case
further evidence on prosecution witnesses.

2. The learned counsel for accused has filed application
U/Sec.311 of Cr.P.C. seeking recall of PW-2/ victim girl for the
purpose of further cross examination. In the application the
accused has stated that victim girl was examined before this
court as PW-2 and after the cross examination of witness was
discharged 30/9/2023. on However, during the cross-
examination of PW-3 i.e. the mother of victim girl some material
omissions have been elicited by the defense counsel and also
quantifiable suggestions have been put to her taking admission.

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In view of the omissions and admission taken during the cross
examination of PW-3, it becomes inevitable for the defense
counsel to pose the same to PW-2 victim girl. It is also noticed
that few videos pertaining to the accused and PW-2 and voice
messages sent by PW-2 to the accused have to be confronted
with PW-2 which are very significant from the perspective of
adjudication of the case. In order to extract truth to render
justice further cross-examination of PW-2 is very much
necessary. Hence, prays to allow the application.

3. The learned Special Public Prosecutor has filed written
objection statement to the application and seriously objected to
allow this application on the ground that PW-2 is a minor victim
girl and she has been extensively cross examined by the learned
counsel by taking several adjournments and the victim girl
repeatedly recalled before this court on many dates which is
gross violation of Sec. 33(5) of POCSO Act. Even in provision of
Sec.42A of POCSO Act the application filed by the accused is not
maintainable and as the provision of POCSO Act being a special
legislation have to be given effect and the application under
reply is liable to be rejected and on this ground the accused has
failed to make any justifiable reason in urging of the application
relaying upon one selective expression U/Sec. 311 of of Cr.P.C
and if the victim girl is once again recalled she will be subjected
to severe mental torture despite having extensively examined
before this court and even she was subjected to emotional
imbalance. Hence prays to dismiss the application.

4. Heard the arguments from both sides and perused the
entire records.

5. The only points that arise for my consideration is:

"Whether the accused has made out a ground to
recall the witness PW-2 for the purpose of further cross
examination?."


6. My findings on the above point is 'in the Affirmative' for
the following:

REASONS

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7. The learned counsel for the accused in support of his
arguments has relied upon the judgment reported in 2007 (11)
SCC 802 wherein it is held that "Court not debarred from
examining a witness even at the stage of subsequent to
recording of statement of accused -refusing to recall a witness
on the ground of inconvenience not proper."

8. Per contra, the learned Spl.Public Prosecutor in support
of his contention has relied upon the following judgments:

1) Criminal Appeal No.1258/2022 of Hon'ble Apex
court .

2) Criminal revision appl.No.1232/2022 of Hon'ble
High court of Gujarat

3) Crl.M.C.No.5032/023 of Hon'ble High court of
Delhi.

4) Cr.O.P.No.4131/2022 and Crl.M.P.No.2060/2022
of Hon'ble High court of Madras.

5) Misc.Criminal case No.4884/2023 of Hon'ble
High court of Madhya Pradesh.

6) Crl.M.C.No.3215/2012 Hon'ble High court of
Kerala.

Admittedly prosecution got examined the victim girl CW-2
as PW-2 before this court on 23/1/203 and after the
examination in chief of the witness at the request of the learned
counsel for the accused cross examination of PW-2 was
adjourned. Subsequently on 21/2/2023 even though victim girl
was present before the court to render for cross-examination,
but however, the learned counsel for the accused has failed to
cross examine the witness and therefore the prayer sought for
the learned counsel for the accused for adjournment is rejected
and taken the cross-examination of PW-2 is nil and witness was
discharged. Subsequently the accused has filed the application
U/Sec.311 of Cr.P.C seeking recall of PW-2 for the purpose of
cross-examination and the said application was came to be
allowed by an order dated 16/6/2023 on payment of costs to
the witness and based on the summons issued from this court,

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PW-2 was appeared before this court on 18/8/2023 and she was
subjected for cross-examination and subsequently the cross-
examination of PW-2 was concluded on 30/9/2023. Now at this
stage of proceeding after conclusion of evidence of prosecution
side witnesses, the accused once again come up with this
application praying to recall PW-2 for the purpose of further
cross-examination on the ground that while cross examining
PW-3, the mother of this victim girl some of the material
omission have been elicited and also quantifiable suggestion
have been put to take admissions and as such in view of
omission and admission taking during the cross-examination it
is inevitable for him to pose those omission and admission to
PW-2 in her cross-examination. No doubt it is well settled
principle of law U/Sec.33(5) of POCSO Act has clearly stated
that child cannot be repeatedly recall to testify the court.
However, admittedly in this case the accused is none other than
own father of this victim girl. The accused has not only denied
the entire case of the prosecution, but however, he has taken
up specific defense that he is most affectionate father to the
victim girl and at no point of time, his interest contrary to the
interest of the minor victim girl. As I have discussed supra
burden is on this accused to rebut presumption available to the
prosecution U/Sec.29 of POCSO Act. Even though this fact was
seriously denied by the learned spl. prosecutor in his objection
Statement to the application, however, the burden is on the
accused to rebut the presumption available to the prosecution
U/Sec.29 and 30 of POCSO Act. In such being the case if one
more opportunity is given to the accused to further cross
examined PW-2, no harm and injury will be caused to the
interest of prosecution. The inconvenience caused to the
prosecution can be compensated by awarding some costs.
Hence, I answer point No.1 in the affirmative and proceed to
pass the following:
ORDER

The application filed by the accused
U/Sec.311 Cr.P.C is hereby allowed on payment of
cost of Rs.2,500/- to PW2.

Office is directed to issue summons to PW-2
and accused is directed to pay the cost amounts as
and when the witnesses PW-2 is present before this
court to tender for cross-examination and directed

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the accused that he has to Cross examine the
witness as and when she was present before the
court.”

10. The issue now would be whether the order impugned
dated 13-03-2024 suffers from want of tenability in law?

11. Before considering the issue, I deem it appropriate to
notice the statutory landscape. Section 33 of the Act POCSO Act
reads as follows:
“33. Procedure and powers of Special Court. —(1) A
Special Court may take cognizance of any offence, without
the accused being committed to it for trial, upon receiving
a complaint of facts which constitute such offence, or
upon a police report of such facts.
(2) The Special Public Prosecutor, or as the case may be,
the counsel appearing for the accused shall, while
recording the examination-in-chief, cross-examination or
re-examination of the child, communicate the questions to
be put to the child to the Special Court which shall in turn
put those questions to the child.
(3) The Special Court may, if it considers necessary,
permit frequent breaks for the child during the trial.
(4) The Special Court shall create a child-friendly
atmosphere by allowing a family member, a guardian, a
friend or a relative, in whom the child has trust or
confidence, to be present in the court.
(5) The Special Court shall ensure that the child is
not called repeatedly to testify in the court.
(6) The Special Court shall not permit aggressive
questioning or character assassination of the child and

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ensure that dignity of the child is maintained at all times
during the trial.
(7) The Special Court shall ensure that the identity of the
child is not disclosed at any time during the course of
investigation or trial:
Provided that for reasons to be recorded in writing, the
Special Court may permit such disclosure, if in its opinion
such disclosure is in the interest of the child.
Explanation .—For the purposes of this sub-section, the
identity of the child shall include the identity of the child's
family, school, relatives, neighbourhood or any other
information by which the identity of the child may be
revealed.
(8) In appropriate cases, the Special Court may, in
addition to the punishment, direct payment of such
compensation as may be prescribed to the child for any
physical or mental trauma caused to him or for immediate
rehabilitation of such child.
(9) Subject to the provisions of this Act, a Special Court
shall, for the purpose of the trial of any offence under this
Act, have all the powers of a Court of Session and shall try
such offence as if it were a Court of Session, and as far as
may be, in accordance with the procedure specified in the
Code of Criminal Procedure, 1973 (2 of 1974) for trial
before a Court of Session.”

Section 42A reads as follows:
“ 42-A. Act not in derogation of any other law.— The
provisions of this Act shall be in addition to and not in
derogation of the provisions of any other law for the time
being in force and, in case of any inconsistency, the
provisions of this Act shall have overriding effect on the
provisions of any such law to the extent of the
inconsistency.”

Section 311 of the Cr.P.C. reads as follows:

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“ 311. Power to summon material witness, or
examine person present: Any Court may, at any stage
of inquiry, trial or other proceeding under this Code,
summon any person as a witness, or examine any person
in attendance, though not summoned as a witness, or
recall or re-examine any person already examined, and
the Court shall summon and examine or recall and
re-examine any such person if his evidence appears
to be essential for the just decision of the case .”

12. The statutory landscape has been interpreted by the Apex
Court and this Court in a plethora of cases. I deem it appropriate
to notice the jurisprudence.
12.1. The Apex Court in MADHAB CHANDRA PRADHAN
1
AND OTHERS v. STATE OF ODISHA , has held as follows:
” 4. The High Court again held the same provision
against the petitioners while dismissing the Application
under Section 482 of the Cr. P.C. filed by them. It is
important to state here that POCSO Act is a
special legislation, which was enacted to protect
children from sexual offences and for
safeguarding interests and ensuring the well-
being of the child at every stage of trial of
offences under the Act. Section 33 of the POCSO Act
provides for the procedure and powers of the Special
Court and reads as under:
“ 33. Procedure and powers of Special Court. — (1)
A Special Court may take cognizance of any offence,
without the accused being committed to it for trial, upon
receiving a complaint of facts which constitute such
offence, or upon a police report of such facts.

1

2024 SCC OnLine SC 6131

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(2) The Special Public Prosecutor, or as the case may
be, the counsel appearing for the accused shall, while
recording the examination-in-chief, cross-examination
or re-examination of the child, communicate the
questions to be put to the child to the Special Court
which shall in turn put those questions to the child.
(3) The Special Court may, if it considers necessary,
permit frequent breaks for the child during the trial.
(4) The Special Court shall create a child-friendly
atmosphere by allowing a family member, a guardian, a
friend or a relative, in whom the child has trust or
confidence, to be present in the court.
(5) The Special Court shall ensure that the child is
not called repeatedly to testify in the court.
(6) The Special Court shall not permit aggressive
questioning or character assassination of the child and
ensure that dignity of the child is maintained at all times
during the trial.
(7) The Special Court shall ensure that the identity of
the child is not disclosed at any time during the course
of investigation or trial……………….”
A bare perusal of Section 33(5) of the Act indicates
that a duty is cast upon the Special Court to ensure
that a child is not repeatedly called to give his/her
testimony before the court. The legislative intent
behind this provision is clear. It is to ensure that the
child who has suffered a traumatic experience of
sexual assault is not called time and again to testify
about the same incident.
5. We have heard learned counsel for the petitioners, who
would submit that Section 33(5) does not operate as an
absolute bar for recalling the child as a witness for re-
examination. Learned counsel for the petitioners would
argue that Section 33(5) would also not come in the way
of the Special Court's powers under Section 311 of the Cr.
P.C. to recall or re-examine any person who has already
been examined. It would be apposite to reproduce Section
311 of the Cr. P.C. before adverting to the facts of the
present case. Section 311 of the Cr. P.C. reads as under:

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“ 311. Power to summon material witness, or
examine person present. - Any Court may, at any
stage of any inquiry, trial or other proceeding under this
Code, summon any person as a witness, or examine
any person in attendance, though not summoned as a
witness, or recall and re-examine any person already
examined; and the Court shall summon and examine or
recall and re-examine any such person if his evidence
appears to it to be essential to the just decision of the
case…”
We are of the considered opinion that although
Section 33(5) would not act as an absolute bar to
recall the victim for reexamination as a witness,
each case must be looked at in the context of its
individual facts and circumstances. Thus, the
question which falls for our consideration in the
present case is whether in the exercise of its powers
under Section 311 of the Cr. P.C., the Special Court
ought to have recalled the child/victim for re-
examination as witness, keeping in mind the
mandate under Section 33(5) of the Act.
6. The principles which would guide the exercise of a
Court's power under Section 311 of the Cr. P.C. were
succinctly summed up by this Court in State (NCT of Delhi)
v. Shiv Kumar Yadav (2016) 2 SCC 402 : (2016) 1 SCC
(Cri) 510. It was laid down by this Court that first, the
plea for recall of a witness under Section 311 must be
bona fide and genuine. Secondly, applications for recall of
a witness under Section 311 should not be allowed as a
matter of course and the discretion given to the Court
must be exercised judiciously, not arbitrarily.
7. Let us now examine whether in the given facts and
circumstances, plea of the petitioners for recalling the
victim as witness for re-examination ought to have been
allowed by the Special Court. The victim here is a girl
who at the time of the incident was around 15 years
of age allegedly. It is an admitted fact here that
even before the application under Section 311 of the
Cr. P.C. was filed by the petitioners, the defence
counsel was given the opportunity to cross-examine
the victim twice already. On 22.07.2023, the
examination-in-chief of the victim was conducted

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and on the same day, she was cross-examined by
the counsel engaged by the petitioners before the
Special Court. Thereafter, further cross-examination
of the victim was deferred to 14.08.2023 on the
request of the counsel engaged by the petitioners.
On 14.08.2023, she was cross-examined at length
and yet again, a request for adjournment was made
by the counsel engaged by the petitioners, which
was then turned down by the Special Court. It is
then that the application under Section 311 of Cr.
P.C. came to be filed by the petitioners seeking
recall of the victim which was rightly rejected vide
Order dated 10.10.2023 of the Special Court .
8. What weighed with the Special Court, while dismissing
their application was the fact that the after having availed
their first opportunity to cross-examine the victim on
22.07.2023, the accused sought an adjournment which
was granted and thus they were given a second
opportunity to cross-examine the victim on 14.08.2023
and on this day, their advocate cross-examined her at
length but again sought an adjournment which was
disallowed as there was no justification for seeking an
adjournment. Since the accused did not challenge this
order of rejection, the Special Court observed that its
findings in the said order that there was no justification to
adjourn or defer cross-examination to a later date had
attained a finality. The Special Court also placed its
reliance on Section 33(5) of the Act and emphasised
that it is mandated to ensure that the child is not
repeatedly called to testify before it.
9. From a perusal of the record of the case, it is
abundantly clear that ample opportunities were
given to the defence counsel to cross-examine the
victim. When the victim has been examined and then
cross-examined at length twice already,
mechanically allowing an application for recall of the
victim, especially in trial of offences under the
POCSO Act would defeat the very purpose of the
statute. Hence, we find no error or illegality in the
impugned order of the High Court or the Order dt.
10.10.2023 of the Special Court.”

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The Apex Court holds that Section 33(5) of the POCSO Act is not an
absolute bar to the recall a child victim under Section 311 of the
Cr.P.C. However, the recall must be justified on the facts of each
case, particularly, where the victim has already been cross-
examined at length, as repeated recall would defeat the purpose of
the POCSO Act.
12.2. The High Court of Delhi in NARENDER SINGH v.
2
STATE , has held as follows:
“…. …. ….
14. As noted hereinabove, the petitioner is facing a
charge, including under Section 10 of the POCSO Act.
The Supreme Court, considering the object of the POCSO
Act, in Alakh Alok Srivastava v. Union of India , (2018) 17
SCC 291, directed the Courts across the country to
ensure that the Trial in the cases under the POCSO Act
must be fast-tracked, and unnecessary adjournments
should not be granted, and further directed that an
endeavour should be made to complete the trial in a
time-bound manner or within a specific time frame.
15. Special provisions have also been made in the
POCSO Act for the protection of the child victim so
that he/she does not feel a sense of discomfort or
fear or is reminded of the horrifying experience.
One such provision in this direction is contained in

2
2024 SCC OnLine Del 2191

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Section 33(5) of the POCSO Act, which is reproduced
hereinbelow:—
“Section 33. Procedure and powers of Special
Court.—
xxxx
(5) The Special Court shall ensure that the child is not
called repeatedly to testify in the court.”
16. The above provision must guide the learned Trial
Court while considering an application filed by the
accused seeking recall of the child victim for further
cross-examination.
17. In Mahammad Ali Akbar (Supra), a learned Single
Judge of the High Court of Karnataka, while observing
that if the recall of the witness for cross-examination
appears to be essential and necessary for a just decision
in the case, the same should be allowed, emphasized
that the object of the above provision is that the
victim is not harassed and that where repeated
applications under Section 311 of the Cr. P.C. are
filed on frivolous reasons, the same shall not be
allowed.
18. In Sankar (Supra), the High Court of Madras
reiterated that Section 33(5) of the POCSO Act is to
ensure that the child should not be repeatedly
called by the Court for examination as it would
affect the mind of the child. The Court further
observed that, however, once the victim has attained the
age of majority and it is essential for the victim to be
recalled for a just and proper decision, an application for
her recall may be allowed.
19. In S. Ganeshan (Supra), the High Court of Madras
observed that a balance has to be brought between
the rights of the child victim and the rights of the
accused.
20. This Court as well, in Rakesh v. State of NCT of Delhi
Neutral Citation no. 2023 :DHC : 5301, has held that it
would depend on the facts and circumstances of each
case as to whether the application filed by the accused to

- 21 -


recall the child victim can be allowed; there cannot be a
standard format based order for the same. It was held
that while the bar under Section 33(5) of the
POCSO Act may not be absolute and a balance of
rights needs to be maintained under Section 33(5)
of the POCSO Act and Section 311 of the Cr. P.C., at
the same time, the Court's discretion in exercising
its power to re-summon a witness for cross-
examination has to be exercised with
circumspection, caution, and utmost sensitivity.
21. In Vikas v. State , Neutral Citation no. 2020
:DHC : 3058, this Court observed that the mandate
of the POCSO Act and especially Section 33 thereof
is to ensure the protection of a child witness from
victimization and harassment by repeated
appearances in Court. The plea of recall of the
witness has to be bona fide and then a balance is to
be achieved between the rights of the victim and
that of the accused. A mere plea that recall was
necessary for ensuring a fair trial is not enough
unless there are tangible reasons to show how the
fairness of a trial would suffer without a recall.
22. The purpose of Section 311 of the Cr. P.C. is not
to reopen the trial, but is to ensure that the Court
can recall a witness and reexamine the witness if
the evidence of such witness appears to be
essential for the just decision of the case. Reference
can be made to the judgment of the Supreme Court in
Harendra Rai v. State of Bihar , 2023 SCC OnLine SC
1023. In Ratanlal v. Prahlad Jat , (2017) 9 SCC 340, the
Supreme Court has held as under:
“17. In order to enable the court to find out the truth
and render a just decision, the salutary provisions of
Section 311 are enacted whereunder any court by
exercising its discretionary authority at any stage of
inquiry, trial or other proceeding can summon any
person as witness or examine any person in attendance
though not summoned as a witness or recall or re-
examine any person already examined who are
expected to be able to throw light upon the matter in
dispute. The object of the provision as a whole is to do
justice not only from the point of view of the accused

- 22 -


and the prosecution but also from the point of view of
an orderly society. This power is to be exercised only for
strong and valid reasons and it should be exercised with
caution and circumspection. Recall is not a matter of
course and the discretion given to the court has to be
exercised judicially to prevent failure of justice.
Therefore, the reasons for exercising this power should
be spelt out in the order.
18. In Vijay Kumar v. State of U.P. (2011) 8 SCC 136,
this Court while explaining scope and ambit of Section
311 has held as under:
“17. Though Section 311 confers vast discretion
upon the court and is expressed in the widest
possible terms, the discretionary power under the
said section can be invoked only for the ends of
justice. Discretionary power should be exercised
consistently with the provisions of [CrPC] and the
principles of criminal law. The discretionary power
conferred under Section 311 has to be exercised
judicially for reasons stated by the court and not
arbitrarily or capriciously.”
19. In Zahira Habibullah Sheikh (5) v. State of Gujarat
(2006) 3 SCC 374, this Court has considered the
concept underlying under Section 311 as under:
“27. The object underlying Section 311 of the Code is
that there may not be failure of justice on account of
mistake of either party in bringing the valuable
evidence on record or leaving ambiguity in the
statements of the witnesses examined from either
side. The determinative factor is whether it is
essential to the just decision of the case. The section
is not limited only for the benefit of the accused, and
it will not be an improper exercise of the powers of
the court to summon a witness under the section
merely because the evidence supports the case of
the prosecution and not that of the accused. The
section is a general section which applies to all
proceedings, enquiries and trials under the Code and
empowers the Magistrate to issue summons to any
witness at any stage of such proceedings, trial or
enquiry. In Section 311 the significant expression
that occurs is “at any stage of any inquiry or trial or
other proceeding under this Code”. It is, however, to
be borne in mind that whereas the section confers a
very wide power on the court on summoning
witnesses, the discretion conferred is to be exercised
judiciously, as the wider the power the greater is the
necessity for application of judicial mind.”

- 23 -


20. In State (NCT of Delhi) v. Shiv Kumar Yadav
(2016) 2 SCC 402, it was held thus:
“… Certainly, recall could be permitted if
essential for the just decision, but not on such
consideration as has been adopted in the
present case. Mere observation that recall was
necessary “for ensuring fair trial” is not enough
unless there are tangible reasons to show how
the fair trial suffered without recall. Recall is
not a matter of course and the discretion given
to the court has to be exercised judiciously to
prevent failure of justice and not arbitrarily.
While the party is even permitted to correct its
bona fide error and may be entitled to further
opportunity even when such opportunity may
be sought without any fault on the part of the
opposite party, plea for recall for advancing
justice has to be bona fide and has to be
balanced carefully with the other relevant
considerations including uncalled for hardship
to the witnesses and uncalled for delay in the
trial. Having regard to these considerations,
there is no ground to justify the recall of
witnesses already examined.”
21. The delay in filing the application is one of the
important factors which has to be explained in the
application. In Umar Mohammad v. State of Rajasthan
(2007) 14 SCC 711, this Court has held as under:
“38. Before parting, however, we may notice that a
contention has been raised by the learned counsel
for the appellant that PW 1 who was examined in
Court on 5-7-1994 purported to have filed an
application on 1-5-1995 stating that five accused
persons named therein were innocent. An application
filed by him purported to be under Section 311 of the
Code of Criminal Procedure was rejected by the
learned trial Judge by order dated 13-5-1995. A
revision petition was filed thereagainst and the High
Court also rejected the said contention. It is not a
case where stricto sensu the provisions of Section
311 of the Code of Criminal Procedure could have
been invoked. The very fact that such an application
was got filed by PW 1 nine months after his
deposition is itself a pointer to the fact that he had
been won over. It is absurd to contend that he, after
a period of four years and that too after his
examination-in-chief and cross-examination was
complete, would file an application on his own will

- 24 -


and volition. The said application was, therefore,
rightly dismissed.”
23. In Swapan Kumar Chatterjee v. CBI , (2019) 14 SCC
328, the Supreme Court has held as under:
“11. It is well settled that the power conferred under
Section 311 should be invoked by the court only to
meet the ends of justice. The power is to be exercised
only for strong and valid reasons and it should be
exercised with great caution and circumspection. The
court has vide power under this section to even recall
witnesses for re-examination or further examination,
necessary in the interest of justice, but the same has to
be exercised after taking into consideration the facts
and circumstances of each case. The power under this
provision shall not be exercised if the court is of the
view that the application has been filed as an abuse of
the process of law.
12. Where the prosecution evidence has been closed
long back and the reasons for non-examination of the
witness earlier are not satisfactory, the summoning of
the witness at belated stage would cause great
prejudice to the accused and should not be allowed.
Similarly, the court should not encourage the filing of
successive applications for recall of a witness under this
provision.”
24. The above view in Ratanlal (Supra) and Swapan
Kumar Chatterjee (Supra) has been reiterated by the
Supreme Court in Satbir Singh v. State of Haryana , 2023
SCC OnLine SC 1086.
25. Applying the above principles to the facts of the
present case, it would be apparent that the victim was
examined by the prosecution on 31.08.2018. In spite of
the opportunity granted, she was not cross-examined by
the petitioner/accused. On an application filed under
Section 311 of the Cr. P.C., the victim was allowed to be
recalled as a witness, and was cross-examined by the
petitioner on 04.09.2019 and 30.10.2019. The petitioner
then again filed an application seeking recall of the
victim, which was dismissed by the learned Trial Court
vide Order dated 29.09.2020. The said order was upheld
by this Court vide its judgment dated 21.10.2020 passed
in CRL. REV.P. 336/2020. The said order was not

- 25 -


challenged by the petitioner. Instead, on 17.08.2022, the
petitioner again filed an application seeking recall of the
victim as also her mother/complainant for further cross-
examination.
26. In the present petition, apart from making a
general and vague statement that recall of the
witness is necessary for a fair trial, there is no
explanation/ground given for seeking the recall of
the said witnesses. As noted hereinabove, the
victim has been cross-examined on two dates
before the learned Trial Court. The learned Trial Court
also observed the vagueness of the assertion made in the
application seeking recall of the said witnesses, however,
in spite of the same, even in the present petition, the
petitioner has not explained the reason for recalling the
said witnesses. The learned counsel for the petitioner has
also not explained in his oral submissions before this
Court, as to why the recall of the said witnesses is
prayed for.
27. As noted hereinabove, the power under Section 311
of the Cr. P.C. should be invoked by the Court only to
meet the ends of justice. It is to be exercised for
strong and valid reasons and with great caution
and circumspection. It cannot be exercised at the
mere whims and fancies of the accused.”

12.3. Subsequently, the High Court of Delhi in MINOR
CHILD K. AND OTHERS v. STATE NCT OF DELHI AND
3
OTHERS , has held as follows:
“…. …. ….
16. The POCSO Act contains several provisions intended
to ensure that the participation of a child victim in the

3

2026 SCC OnLine Del 1137

- 26 -


criminal trial does not result in further trauma. Section
33(5) of the POCSO Act mandates that the Special
Court shall ensure that the child is not called
repeatedly to testify in court . The purpose of this
provision is to protect the child from the
psychological stress of narrating the same
traumatic incident multiple times during the course
of trial.
17. Further, Section 35 of the POCSO Act prescribes
timelines for recording of evidence and disposal of cases.
Sub-section (1) provides that the evidence of the child
shall be recorded within thirty days from the date of
taking cognizance , and if there is any delay, reasons
must be recorded by the Special Court. Sub-section (2)
further provides that the trial should, as far as possible,
be completed within one year from the date of taking
cognizance . These provisions reflect the legislative
intent that trials involving child victims must
proceed expeditiously so that the child is not
subjected to prolonged participation in criminal
proceedings .
18. Similarly, Section 36 of the POCSO Act ensures that
the child is not exposed to the accused while giving
testimony. The provision requires the Special Court to
adopt suitable arrangements so that the child can depose
in a safe environment without directly confronting the
accused, while at the same time ensuring that the
accused is able to hear the testimony and communicate
with his advocate. For this purpose, the Special Court
may utilise mechanisms such as video-conferencing,
screens, mirrors, curtains or other protective devices.
The intent of this provision is to reduce fear and
intimidation that may be experienced by a child witness
during testimony.
19. Now, insofar as Section 33(5) of the POCSO Act is
concerned, it is pertinent to note that the Supreme Court
in Madhan Chandra Pradhan v. State of Odisha : (SLP
(Crl.) No. 10082 of 2024) has reiterated that the
provision casts a duty upon the Special Court to ensure
that a child is not repeatedly called to testify before the
court. It has been observed that the legislative intent

- 27 -


behind this provision is clear i.e. to ensure that a child
who has already undergone the trauma of sexual assault
is not compelled to repeatedly narrate the same incident
during the course of the trial.
20. The emphasis of the learned counsel for the
petitioners has also been on the decision rendered by the
coordinate Bench of this Court in Vikas v. State (supra).
In the said decision, it has been inter alia held as under:
“25. In the light of the aforesaid judgment I may
state at the cost of repetition that no doubt Section
311 CrPC gives the power to the Court to recall any
witness to serve the ends of justice, however, the
said section in my view would be subject to Section
33(5) of POCSO Act on the principle of
generaliaspecialibus non-derogant. As held by the
trial court and rightly so, the child victim was
extensively examined for several hours and any
recall at this stage would fall foul of the provisions of
Section 33(5) and the intent behind enacting the
Section. It is equally true that Courts have to balance
the conflicting rights and claims and do substantial
justice by permitting the Accused to cross-examine in
a given case but the Court cannot lose site of the
facts of the present case which are different
inasmuch as even after extensive cross-examination
the counsel for the Petitioner did not elicit which
according to him he now wants to ask in cross-
examination.”
21. Thus, the Bench observed that although Section 311
CrPC empowers the court to recall a witness in order to
arrive at a just decision, the exercise of such power must
be harmonised with the mandate of Section 33(5) of the
POCSO Act. Applying the principle of
generaliaspecialibus non derogant , it was held that
the special protection granted under the POCSO Act
must prevail, and once the child witness has been
extensively examined, recall of the witness should
not ordinarily be permitted if it would defeat the
very object of Section 33(5).
22. Similarly, this Bench in Rakesh v. State (NCT of
Delhi) , 2023 SCC OnLine Del 4774, had observed that
while the restriction contained in Section 33(5) may not

- 28 -


be absolute and must be balanced with the power of the
court under Section 311 CrPC, the discretion to recall a
child witness must be exercised with circumspection,
caution and utmost sensitivity. It was observed as under:
“10. While the bar under Section 33(5) POCSO Act
may not be absolute and balance of rights needs to
be maintained under Section 33(5) of POCSO Act and
Section 311 CrPC, at the same time, the Court's
discretion in exercising its power to re-summon a
witness for cross-examination has to be exercised
with circumspection, caution and utmost sensitivity.
The crucial word used in Section 33(5) of POCSO Act
is “called repeatedly”. This section thus has to be
interpreted to balance and applied with the right
under Section 311 CrPC of accused and right to fair
trial of an accused depending on facts and
circumstances of each case.”
23. Thus, the consistent position emerging from the
statutory scheme and judicial precedents is that a child
witness should not be summoned repeatedly to testify
before the court. While the power to recall a witness
under Section 311 CrPC is available, such power must be
exercised sparingly and strictly in accordance with law. In
that regard, no additional directions are required to be
issued by this Court , as all trial courts are already bound
to follow the statutory mandate and the principles laid
down in the aforesaid judicial decisions.
24. At the same time, this Court finds it apposite to
emphasize that the mandate of Section 33(5) of POCSO
Act must also be kept in mind while summoning the child
victim for the purpose of recording examination-in-chief
or cross-examination. Even at this stage, the child should
not be required to appear before the court repeatedly on
multiple dates without effective progress in the recording
of evidence. The timelines prescribed under Section 35 of
the POCSO Act clearly indicate that the recording of the
child's evidence must be treated as a time-bound and
priority exercise.
25. In this context, the attention of this Court was drawn
to the facts of the present case, wherein the petitioners
were first summoned to depose in December 2023. It

- 29 -


was submitted that thereafter, till the filing of the present
petition in May 2025, Petitioner 1 had been summoned
on nine occasions, Petitioner 2 on four occasions, and
Petitioner 3 on six occasions solely for the purpose of
recording their testimony. However, for one reason or
the other, their evidence could not be recorded fully on
each of those dates, resulting in repeated appearances of
the child victims before the trial court. It was also
pointed out that the victims were experiencing distress
and trauma due to repeated court appearances and had
conveyed the same to their respective support persons,
expressing reluctance to visit the court again.
26.Therefore , in light of the abovesaid, this Court is of
the considered opinion whenever the child victim is
summoned for recording of testimony, the Special Court
should endeavour to fix specific dates and ensure that
the necessary arrangements are in place so that the
examination-in-chief and cross-examination are
conducted without unnecessary adjournments. This
would ensure compliance with the legislative intent of the
POCSO Act and prevent avoidable hardship to the child
witness.”

The Apex Court holds that the victim cannot be repeatedly recalled.
The power under Section 311 of the Cr.P.C. must be exercised
sparingly and in harmony with Section 33(5) of the POCSO Act, as
repeated recalling would amount to re-traumatization of the child.
12.4. This Court in SRI RAGHAVENDRA v. STATE OF
4
KARNATAKA , has held as follows:
“…. … ….

4

Crl.P.No.7964 of 2024, Decided on 17.12.2024

- 30 -


7. The afore-narrated facts are not in dispute. PW.1
whom the petitioner wants to recall is the victim girl, who
at the time of the incident was 16 years. The incident
had happened on 24.11.2023 and therefore, she yet to
turn 18. Section 33(5) of the POCSO Act prohibits
repeated calling of the victim girl for cross-examination.
The purport of Section 33(5) of the POCSO Act is
considered by the Apex Court in the case of MADHAB
CHANDRA PRADHAN VS STATE OF ORISSA in SLP
(Crl.) No.10082/2024 , disposed on 05.08.2024 . The
Apex Court considers the interplay between the rights of
an accused under Section 311 of the Cr.P.C., with
Section 33(5) of the POCSO Act. The Apex Court has held
as follows:
“3. The petitioners have challenged the order dated
15.05.2024 passed by the High Court of Orissa, by
which their application filed under Section 482 of the
Code of Criminal Procedure, 1973 (hereinafter
‘Cr.P.C.’) was dismissed. The petitioners had
approached the High Court, assailing the order dated
10.10.2023 by which the Special Court rejected their
application under Section 311 of Cr.P.C, which was
filed for recalling the victim/PW-1 for re-examination
as witness. While rejecting the plea for recall of the
victim, the Special Court relied upon Section 33 (5) of
the Act where the statute itself mandates that a child
will not be called in the Court to testify.
4. The High Court again held the same provision
against the petitioners while dismissing the Application
under Section 482 of the Cr. P.C. filed by them. It is
important to state here that POCSO Act is a special
legislation, which was enacted to protect children from
sexual offences and for safeguarding interests and
ensuring the well-being of the child at every stage of
trial of offences under the Act. Section 33 of the
POCSO Act provides for the procedure and powers of
the Special Court and reads as under:
“ 33. Procedure and powers of Special Court. —
(1) A Special Court may take cognizance of any
offence, without the accused being committed to it for
trial, upon receiving a complaint of facts which
constitute such offence, or upon a police report of
such facts.

- 31 -


(2) The Special Public Prosecutor, or as the case may
be, the counsel appearing for the accused shall, while
recording the examination-in-chief, cross-examination
or re-examination of the child, communicate the
questions to be put to the child to the Special Court
which shall in turn put those questions to the child.
(3) The Special Court may, if it considers necessary,
permit frequent breaks for the child during the trial.
(4) The Special Court shall create a child-friendly
atmosphere by allowing a family member, a guardian,
a friend or a relative, in whom the child has trust or
confidence, to be present in the court.
(5) The Special Court shall ensure that the child
is not called repeatedly to testify in the court.
(6) The Special Court shall not permit aggressive
questioning or character assassination of the child and
ensure that dignity of the child is maintained at all
times during the trial.
(7) The Special Court shall ensure that the identity of
the child is not disclosed at any time during the course
of investigation or trial……………….”
A bare perusal of Section 33(5) of the Act indicates
that a duty is cast upon the Special Court to ensure
that a child is not repeatedly called to give his/her
testimony before the court. The legislative intent
behind this provision is clear. It is to ensure that
the child who has suffered a traumatic
experience of sexual assault is not called time
and again to testify about the same incident.
5. We have heard learned counsel for the petitioners,
who would submit that Section 33(5) does not operate
as an absolute bar for recalling the child as a witness
for re-examination. Learned counsel for the petitioners
would argue that Section 33(5) would also not come in
the way of the Special Court's powers under Section
311 of the Cr. P.C. to recall or re-examine any person
who has already been examined. It would be apposite
to reproduce Section 311 of the Cr. P.C. before
adverting to the facts of the present case. Section 311
of the Cr. P.C. reads as under:
“ 311. Power to summon material witness, or
examine person present. - Any Court may, at any
stage of any inquiry, trial or other proceeding under
this Code, summon any person as a witness, or

- 32 -


examine any person in attendance, though not
summoned as a witness, or recall and re-examine any
person already examined; and the Court shall summon
and examine or recall and re-examine any such person
if his evidence appears to it to be essential to the just
decision of the case…”
We are of the considered opinion that although Section
33(5) would not act as an absolute bar to recall the
victim for reexamination as a witness, each case must
be looked at in the context of its individual facts and
circumstances. Thus, the question which falls for our
consideration in the present case is whether in the
exercise of its powers under Section 311 of the Cr.
P.C., the Special Court ought to have recalled the
child/victim for re-examination as witness, keeping in
mind the mandate under Section 33(5) of the Act.
6. The principles which would guide the exercise
of a Court's power under Section 311 of the Cr.
P.C. were succinctly summed up by this Court in
State (NCT of Delhi) v. Shiv Kumar Yadav (2016)
2 SCC 402 : (2016) 1 SCC (Cri) 510. It was laid
down by this Court that first, the plea for recall
of a witness under Section 311 must be bona fide
and genuine. Secondly, applications for recall of
a witness under Section 311 should not be
allowed as a matter of course and the discretion
given to the Court must be exercised judiciously,
not arbitrarily.
7. Let us now examine whether in the given facts and
circumstances, plea of the petitioners for recalling the
victim as witness for re-examination ought to have
been allowed by the Special Court. The victim here is a
girl who at the time of the incident was around 15
years of age allegedly. It is an admitted fact here that
even before the application under Section 311 of the
Cr. P.C. was filed by the petitioners, the defence
counsel was given the opportunity to cross-examine
the victim twice already. On 22.07.2023, the
examination-in-chief of the victim was conducted and
on the same day, she was cross-examined by the
counsel engaged by the petitioners before the Special
Court. Thereafter, further cross-examination of the
victim was deferred to 14.08.2023 on the request of
the counsel engaged by the petitioners. On
14.08.2023, she was cross-examined at length and yet
again, a request for adjournment was made by the

- 33 -


counsel engaged by the petitioners, which was then
turned down by the Special Court. It is then that the
application under Section 311 of Cr. P.C. came to be
filed by the petitioners seeking recall of the victim
which was rightly rejected vide Order dated
10.10.2023 of the Special Court.
8. What weighed with the Special Court, while
dismissing their application was the fact that the after
having availed their first opportunity to cross-examine
the victim on 22.07.2023, the accused sought an
adjournment which was granted and thus they were
given a second opportunity to cross-examine the
victim on 14.08.2023 and on this day, their advocate
cross-examined her at length but again sought an
adjournment which was disallowed as there was no
justification for seeking an adjournment. Since the
accused did not challenge this order of rejection, the
Special Court observed that its findings in the said
order that there was no justification to adjourn or
defer cross-examination to a later date had attained a
finality. The Special Court also placed its reliance
on Section 33(5) of the Act and emphasised that
it is mandated to ensure that the child is not
repeatedly called to testify before it.
9. From a perusal of the record of the case, it is
abundantly clear that ample opportunities were
given to the defence counsel to cross-examine
the victim. When the victim has been examined
and then cross-examined at length twice
already, mechanically allowing an application for
recall of the victim, especially in trial of offences
under the POCSO Act would defeat the very
purpose of the statute. Hence, we find no error or
illegality in the impugned order of the High Court or
the Order dt. 10.10.2023 of the Special Court.”
The Apex Court observes that repeatedly calling
the victim girl and speaking about traumatic
experience should not be permitted. In that light,
further cross-examination that is sought by the
petitioner of the victim girl would run foul of the
law laid down by the Apex Court in the aforesaid
judgment (supra).”

- 34 -


The afore-quoted jurisprudence is with regard to the interpretation
of Section 33(5) of the Act.

13. Since the application is filed under Section 311 of the
Cr.P.C., I deem it appropriate to notice the interpretation of Section
311 of the Cr.P.C.

13.1. The Apex Court in the case of STATE (NCT OF DELHI)
5
v. SHIV KUMAR YADAV AND ANOTHER , has held as follows:
“…. …. ….
11. It is further well settled that fairness of trial has to be
seen not only from the point of view of the accused, but
also from the point of view of the victim and the society.
In the name of fair trial, the system cannot be held to
ransom. The accused is entitled to be represented by a
counsel of his choice, to be provided all relevant
documents, to cross-examine the prosecution witnesses
and to lead evidence in his defence. The object of
provision for recall is to reserve the power with the
court to prevent any injustice in the conduct of the
trial at any stage. The power available with the
court to prevent injustice has to be exercised only if
the court, for valid reasons, feels that injustice is
caused to a party. Such a finding, with reasons,
must be specifically recorded by the court before the
power is exercised. It is not possible to lay down
precise situations when such power can be

5

(2016) 2 SCC 402

- 35 -


exercised. The legislature in its wisdom has left the
power undefined. Thus, the scope of the power has
to be considered from case to case. The guidance for
the purpose is available in several decisions relied upon by
the parties. It will be sufficient to refer to only some of the
decisions for the principles laid down which are relevant
for this case.
12. In Rajaram case [ Rajaram Prasad Yadav v. State of
Bihar , (2013) 14 SCC 461 : (2014) 4 SCC (Cri) 256] , the
complainant was examined but he did not support the
prosecution case. On account of subsequent events he
changed his mind and applied for recall under Section 311
CrPC which was declined by the trial court but allowed by
the High Court. This Court held such a course to be
impermissible, it was observed : (SCC pp. 468-69, paras
13-14)
“ 13 . … In order to appreciate the stand of the appellant it
will be worthwhile to refer to Section 311 CrPC, as well as
Section 138 of the Evidence Act. The same are extracted
hereunder:
Section 311, Code of Criminal Procedure
‘ 311. Power to summon material witness, or
examine person present .—Any court may, at any stage
of any inquiry, trial or other proceeding under this Code,
summon any person as a witness, or examine any person
in attendance, though not summoned as a witness, or
recall and re-examine any person already examined; and
the court shall summon and examine or recall and re-
examine any such person if his evidence appears to it to
be essential to the just decision of the case.’
*
Section 138, Evidence Act
‘ 138. Order of examinations .—Witnesses shall be first
examined-in-chief then (if the adverse party so desires)
cross-examined, then (if the party calling him so desires)
re-examined.
The examination and cross-examination must relate to
relevant facts but the cross-examination need not be
confined to the facts to which the witness testified on his
examination-in-chief.

- 36 -


Direction of re-examination .—The re-examination shall
be directed to the explanation of matters referred to in
cross-examination; and if new matter is, by permission of
the court, introduced in re-examination, the adverse party
may further cross-examine upon that matter.’
14 . A conspicuous reading of Section 311 CrPC would show
that widest of the powers have been invested with the
courts when it comes to the question of summoning a
witness or to recall or re-examine any witness already
examined. A reading of the provision shows that the
expression ‘ any ’ has been used as a prefix to ‘ court ’,
‘ inquiry ’, ‘ trial ’, ‘ other proceeding ’, ‘ person as a witness ’,
‘ person in attendance though not summoned as a witness ’,
and ‘ person already examined ’. By using the said
expression ‘ any ’ as a prefix to the various expressions
mentioned above, it is ultimately stated that all that was
required to be satisfied by the court was only in relation to
such evidence that appears to the court to be essential for
the just decision of the case. Section 138 of the Evidence
Act, prescribed the order of examination of a witness in the
court. The order of re-examination is also prescribed
calling for such a witness so desired for such re-
examination. Therefore, a reading of Section 311 CrPC and
Section 138 of the Evidence Act, insofar as it comes to the
question of a criminal trial, the order of re-examination at
the desire of any person under Section 138, will have to
necessarily be in consonance with the prescription
contained in Section 311 CrPC. It is, therefore, imperative
that the invocation of Section 311 CrPC and its application
in a particular case can be ordered by the court, only by
bearing in mind the object and purport of the said
provision, namely, for achieving a just decision of the case
as noted by us earlier. The power vested under the said
provision is made available to any court at any stage in
any inquiry or trial or other proceeding initiated under the
Code for the purpose of summoning any person as a
witness or for examining any person in attendance, even
though not summoned as witness or to recall or re-
examine any person already examined. Insofar as
recalling and re-examination of any person already
examined is concerned, the court must necessarily
consider and ensure that such recall and re-
examination of any person, appears in the view of
the court to be essential for the just decision of the
case. Therefore, the paramount requirement is just
decision and for that purpose the essentiality of a

- 37 -


person to be recalled and re-examined has to be
ascertained. To put it differently, while such a widest
power is invested with the court, it is needless to
state that exercise of such power should be made
judicially and also with extreme care and caution.”
(emphasis in original)
13. After referring to the earlier decisions on the point,
the Court culled out the following principles to be borne in
mind : ( Rajaram case [ Rajaram Prasad Yadav v. State of
Bihar , (2013) 14 SCC 461 : (2014) 4 SCC (Cri) 256] , SCC
pp. 473-74, para 17)
“ 17.1 . Whether the court is right in thinking that the
new evidence is needed by it? Whether the evidence
sought to be led in under Section 311 is noted by the
court for a just decision of a case?
17.2 . The exercise of the widest discretionary power
under Section 311 CrPC should ensure that the
judgment should not be rendered on inchoate,
inconclusive and speculative presentation of facts, as
thereby the ends of justice would be defeated.
17.3 . If evidence of any witness appears to the court
to be essential to the just decision of the case, it is the
power of the court to summon and examine or recall
and re-examine any such person.
17.4 . The exercise of power under Section 311 CrPC
should be resorted to only with the object of finding
out the truth or obtaining proper proof for such facts,
which will lead to a just and correct decision of the
case.
17.5 . The exercise of the said power cannot be dubbed
as filling in a lacuna in a prosecution case, unless the
facts and circumstances of the case make it apparent
that the exercise of power by the court would result in
causing serious prejudice to the accused, resulting in
miscarriage of justice.
17.6 . The wide discretionary power should be
exercised judiciously and not arbitrarily.
17.7 . The court must satisfy itself that it was in every
respect essential to examine such a witness or to recall

- 38 -


him for further examination in order to arrive at a just
decision of the case.
17.8 . The object of Section 311 CrPC simultaneously
imposes a duty on the court to determine the truth
and to render a just decision.
17.9 . The court arrives at the conclusion that
additional evidence is necessary, not because it would
be impossible to pronounce the judgment without it,
but because there would be a failure of justice without
such evidence being considered.
17.10 . Exigency of the situation, fair play and good
sense should be the safeguard, while exercising the
discretion. The court should bear in mind that no party
in a trial can be foreclosed from correcting errors and
that if proper evidence was not adduced or a relevant
material was not brought on record due to any
inadvertence, the court should be magnanimous in
permitting such mistakes to be rectified.
17.11 . The court should be conscious of the position
that after all the trial is basically for the prisoners and
the court should afford an opportunity to them in the
fairest manner possible. In that parity of reasoning, it
would be safe to err in favour of the accused getting
an opportunity rather than protecting the prosecution
against possible prejudice at the cost of the accused.
The court should bear in mind that improper or
capricious exercise of such a discretionary power, may
lead to undesirable results.
17.12 . The additional evidence must not be received
as a disguise or to change the nature of the case
against any of the party.
17.13 . The power must be exercised keeping in mind
that the evidence that is likely to be tendered, would
be germane to the issue involved and also ensure that
an opportunity of rebuttal is given to the other party.
17.14 . The power under Section 311 CrPC must
therefore, be invoked by the court only in order to
meet the ends of justice for strong and valid reasons
and the same must be exercised with care, caution
and circumspection. The court should bear in mind
that fair trial entails the interest of the accused, the
victim and the society and, therefore, the grant of fair

- 39 -


and proper opportunities to the persons concerned,
must be ensured being a constitutional goal, as well as
a human right.”
14. In Hoffman Andreas case [ Hoffman Andreas v.
Inspector of Customs , (2000) 10 SCC 430 : 2001 SCC
(Cri) 1488] , the counsel who was conducting the case was
ill and died during the progress of the trial. The new
counsel sought recall on the ground that the witnesses
could not be cross-examined on account of the illness of
the counsel. This prayer was allowed in peculiar
circumstances with the observation that normally a closed
trial could not be reopened but illness and death of the
counsel was in the facts and circumstances considered to
be a valid ground for recall of witnesses. It was observed :
(SCC p. 432, para 6)
“ 6 . Normally, at this late stage, we would be disinclined to
open up a closed trial once again. But we are persuaded to
consider it in this case on account of the unfortunate
development that took place during trial i.e. the passing
away of the defence counsel midway of the trial. The
counsel who was engaged for defending the appellant had
cross-examined the witnesses but he could not complete
the trial because of his death. When the new counsel took
up the matter he would certainly be under the
disadvantage that he could not ascertain from the
erstwhile counsel as to the scheme of the defence strategy
which the predeceased advocate had in mind or as to why
he had not put further questions on certain aspects. In
such circumstances, if the new counsel thought to have the
material witnesses further examined the Court could adopt
latitude and a liberal view in the interest of justice,
particularly when the Court has unbridled powers in the
matter as enshrined in Section 311 of the Code. After all
the trial is basically for the prisoners and courts should
afford the opportunity to them in the fairest manner
possible.”
15. The above observations cannot be read as laying down
any inflexible rule to routinely permit a recall on the
ground that cross-examination was not proper for reasons
attributable to a counsel. While advancement of justice
remains the prime object of law, it cannot be understood
that recall can be allowed for the asking or reasons related
to mere convenience. It has normally to be presumed that

- 40 -


the counsel conducting a case is competent particularly
when a counsel is appointed by choice of a litigant. Taken
to its logical end, the principle that a retrial must follow on
every change of a counsel, can have serious consequences
on conduct of trials and the criminal justice system. The
witnesses cannot be expected to face the hardship
of appearing in court repeatedly, particularly in
sensitive cases such as the present one. It can result
in undue hardship for the victims, especially so, of
heinous crimes, if they are required to repeatedly
appear in court to face cross-examination.

16. The interest of justice may suffer if the counsel
conducting the trial is physically or mentally unfit on
account of any disability. The interest of the society is
paramount and instead of trials being conducted again on
account of unfitness of the counsel, reform may appear to
be necessary so that such a situation does not arise.
Perhaps time has come to review the Advocates Act and
the relevant rules to examine the continued fitness of an
advocate to conduct a criminal trial on account of
advanced age or other mental or physical infirmity, to
avoid grievance that an Advocate who conducted trial was
unfit or incompetent. This is an aspect which needs to be
looked into by the authorities concerned including the Law
Commission and the Bar Council of India.
…. …. ….
27. It is difficult to approve the view taken by the High
Court. Undoubtedly, fair trial is the objective and it is the
duty of the court to ensure such fairness. Width of power
under Section 311 CrPC is beyond any doubt. Not a single
specific reason has been assigned by the High Court as to
how in the present case recall of as many as 13 witnesses
was necessary as directed in the impugned order. No fault
has been found with the reasoning of the order of the trial
court. The High Court rejected on merits the only two
reasons pressed before it that the trial was hurried and the
counsel was not competent. In the face of rejecting these
grounds, without considering the hardship to the
witnesses, undue delay in the trial, and without any other
cogent reason, allowing recall merely on the observation

- 41 -


that it is only the accused who will suffer by the delay as
he was in custody could, in the circumstances, be hardly
accepted as valid or serving the ends of justice. It is not
only matter of delay but also of harassment for the
witnesses to be recalled which could not be justified on the
ground that the accused was in custody and that he would
only suffer by prolonging of the proceedings. Certainly
recall could be permitted if essential for the just decision
but not on such consideration as has been adopted in the
present case. Mere observation that recall was
necessary “for ensuring fair trial” is not enough
unless there are tangible reasons to show how the
fair trial suffered without recall. Recall is not a
matter of course and the discretion given to the
court has to be exercised judiciously to prevent
failure of justice and not arbitrarily. While the party
is even permitted to correct its bona fide error and
may be entitled to further opportunity even when
such opportunity may be sought without any fault
on the part of the opposite party, plea for recall for
advancing justice has to be bona fide and has to be
balanced carefully with the other relevant
considerations including uncalled for hardship to the
witnesses and uncalled for delay in the trial. Having
regard to these considerations, we do not find any ground
to justify the recall of witnesses already examined.”

13.2. Subsequently, in the case of SWAPAN KUMAR
6
CHATTERJEE v. CENTRAL BUREAU OF INVESTIGATION , the
Apex Court holds as follows:
“…. …. ….

6

2019 SCC OnLine SC 161

- 42 -


11. It is well settled that the power conferred under
Section 311 should be invoked by the court only to meet
the ends of justice. The power is to be exercised only
for strong and valid reasons and it should be
exercised with great caution and circumspection.
The court has vide power under this section to even recall
witnesses for re-examination or further examination,
necessary in the interest of justice, but the same has to be
exercised after taking into consideration the facts and
circumstances of each case. The power under this
provision shall not be exercised if the court is of the view
that the application has been filed as an abuse of the
process of law.
12. Where the prosecution evidence has been closed
long back and the reasons for non-examination of
the witness earlier are not satisfactory, the
summoning of the witness at belated stage would
cause great prejudice to the accused and should not
be allowed. Similarly, the court should not
encourage the filing of successive applications for
recall of a witness under this provision.

Both the afore-quoted judgments hold that the power under Section
311 Cr.P.C. must be exercised with caution. Successive applications
for recall should not be encouraged, particularly where the reasons
for recall are unsatisfactory. All these principles did bear
consideration before the Apex Court in the subsequent judgment in
the case of VARSHA GARG v. STATE OF MADHYA PRADESH
reported in 2022 SCC OnLine SC 986 . The afore-quoted
judgments, though were rendered interpreting an application under

- 43 -


Section 311 of the Cr.P.C., do not concern an offence under the
POCSO Act. They interpret general principles.

14. The issue in the case at hand is with regard to the second
application filed for recall of the victim girl for further cross-
examination. Victim was 8 years old at the time of the alleged
incident and is today 12 years old. This Court cannot ignore the
trauma a child would undergo, if there is a rehash of all that had
happened on the date of the alleged incident, which would only re-
traumatize the child. The child would be put to psychological
distress.

15. The Apex Court in the case of SHEETAL VASANT
7
THAKUR v. CHIRAG ARORA , considers what would amount to
psychological distress to a child and holds as follows:
“…. …. ….
41. The significance of the POCSO Act lies not merely in
the creation of substantive offences relating to child sexual
abuse, but equally in its recognition that the justice
delivery process itself must remain child-sensitive,

7
2026 SCC OnLine SC 1110

- 44 -


trauma-informed, child friendly and protective of the
psychological well-being of the child victim. The enactment
represents a conscious legislative departure from the
conventional adversarial criminal procedures insofar as
children are concerned. The statute proceeds on the
foundational premise that a child who has allegedly
suffered sexual abuse must not be exposed to
processes capable of causing further emotional
harm, humiliation or secondary victimisation.
42. It is, therefore, necessary before examining the
correctness of the impugned orders, to advert to the
broader statutory philosophy and architecture underlying
the POCSO Act and the child-friendly procedural
safeguards embodied therein, not for the purpose of
mechanically importing provisions of the criminal
procedure into custody proceedings, but to derive doctrinal
guidance concerning the manner in which courts must
engage with child victims participating in judicial processes
even in custodial proceedings like custody, visitation right
of the parents.
43. Section 24 of the POCSO Act mandates that the
statement of a child is to be recorded in a child-friendly
manner by police officers specially trained for such
purpose and, significantly, without exposing the child to
fear, intimidation or distress.
The legislative emphasis is, therefore, not
confined merely to collection of evidence, but
extends equally to preservation of the emotional and
psychological security of the child throughout the
process especially when it involves interaction with
the child.
44. Equally significant is Section 33(5) of the POCSO
Act which obligates the Special Court to ensure that
the child is not called repeatedly to testify in court .
The principle underlying the provision is of considerable
importance. The legislature, while framing the statutory
scheme, consciously recognised that repeated engagement
of a child victim in legal processes may itself result in re-
traumatisation and emotional injury. The provision
embodies what may broadly be described as the

- 45 -


principle of minimum exposure and minimum re-
traumatisation.
45. Section 36 of the POCSO Act further stipulates that
the child should not be exposed to the accused at the time
of recording of evidence and empowers the Court to adopt
appropriate measures to ensure that the child remains
comfortable and psychologically secure during
proceedings.
46. Similarly, Section 39 of the POCSO Act contemplates
provision of support persons, interpreters, experts and
other assistance necessary to safeguard the welfare,
dignity and psychological well-being of the child during the
course of proceedings.
47. The statutory framework, when viewed holistically,
thus reveals a consistent legislative intent to ensure
that legal procedures involving child victims are
child friendly and do not themselves become
stressful and instruments of psychological distress.
The object of the enactment is not merely punitive.
Equally, and perhaps more fundamentally, the
legislation seeks to preserve the dignity, emotional
integrity and mental well-being of the child
throughout the process of engagement with the
justice system.
48. This Court has also, on multiple occasions,
emphasized the need for child-sensitive judicial processes
in matters involving allegations of sexual abuse against
1
minors. In Sakshi v. Union of India , this Court
recognised that repeated exposure of child victims
to intimidating judicial procedures may itself
aggravate trauma suffered by the child and issued a
slew of directions to be followed while recording of
statement/examining a child victim in the court to
prevent any traumatization in the process.
This Court acknowledged the profound
psychological impact which judicial processes
themselves may have upon victims of sexual
offences, particularly children. The decision is
significant not merely for the procedural safeguards
specifically directed therein, but for the broader

- 46 -


doctrinal recognition that preservation of the
psychological well-being and emotional security of
the child and prevention of any further trauma
constitute integral components of fair and child-
centric adjudication.
49. The jurisprudential thread running through
Sakshi (supra), as also the statutory framework of
the POCSO Act, is that while the child remains at the
centre of the process, she must be kept insulated
from the stressful process. The justice delivery
system cannot treat the child as a mere evidentiary
object subjected to repeated forensic or
psychological scrutiny at the instance of contesting
litigants. The psychological integrity of the child
constitutes an independent and paramount
consideration which courts are duty-bound to
preserve.
50. Having examined the statutory framework underlying
the POCSO Act and the child-sensitive procedural
safeguards embodied therein, it now becomes necessary
to advert to the broader principles governing child welfare
and trauma-informed adjudication which have consistently
informed judicial decision-making process in matters
concerning minors especially dealing with custodial and
visitation rights of the parents.
51. Through a series of judgments, this Court has laid
down firmly that welfare of the child is the overarching
and the determining factor even in matters relating to
custodial and visitation rights of the parents. All other
factors are subservient to the welfare of the child.
2
This Court in Gaurav Nagpal v. Sumedha Nagpal ,
after a survey of law in this country as well as in foreign
jurisdictions, affirmed that child welfare is the paramount
consideration and also highlighted the legal proposition of
parens patriae jurisdiction of the court for the welfare of
the child. This Court even went to the extent of ignoring
orders of foreign courts by keeping the welfare of the child
as the paramount consideration.
3
In Yashita Sahu v. State of Rajasthan , and Rajeswari
4
Chandrasekar Ganesh v. State of Tamil Nadu this Court

- 47 -


held that though this Court will accord substantial weight
to foreign custody orders, it will be like other factors which
will be subordinate to the prime consideration of the
welfare of the child. Comity or first strike consideration will
be subordinate to the welfare of child, affirming the
supremacy of the child welfare principle. We may not
burden ourselves any further with the numerous decisions
in this regard in reiterating the dominant principle of the
welfare of the child.
52. In Gaurav Nagpal (supra) this Court emphasised that
welfare must be understood in the widest sense, from
moral and ethical perspectives keeping in mind physical,
emotional and educational needs of the child. In other
words, all those factors which are conducive to the
physical, moral and intellectual development of the child,
and not merely confined to material aspects, must be
taken into consideration by the court. In the aforesaid
case, this Court also considered the conduct of the
parents, psychological impact on the child which may
result because of tutoring by either of the parents etc. in
seeking to ascertain what would be in the best interest of
the child.
This Court observed in Gaurav Nagpal (supra) as
follows:—
“ 50. When the court is confronted with conflicting
demands made by the parents, each time it has to
justify the demands. The court has not only to look
at the issue on legalistic basis, in such matters
human angles are relevant for deciding those issues.
The court then does not give emphasis on what the
parties say, it has to exercise a jurisdiction which is
aimed at the welfare of the minor. As observed
5
recently in Mausami Moitra Ganguli case , the court
has to give due weightage to the child's ordinary
contentment, health, education, intellectual
development and favourable surroundings but over
and above physical comforts, the moral and ethical
values have also to be noted. They are equal if not
more important than the others.
51. The words “welfare” used in Section 13 of the Act
has to be construed literally and must be taken in its
widest sense. The moral and ethical welfare of the

- 48 -


child must also weigh with the court as well as its
physical well-being. Though the provisions of the
special statutes which govern the rights of the
parents or guardians may be taken into
consideration, there is nothing which can stand in the
way of the court exercising its parens patriae
jurisdiction arising in such cases.”
53. In the light of the above position we can say that
emotional stability, psychological security, dignity
and mental health constitute vital components of
the concept of the welfare of the child . Consequently,
any such factors which may impede and seen to be
disruptive to the welfare of the child must be abjured
while considering the welfare of the child. Any process
which leads to the detriment of the welfare of the child
must be avoided by the court while passing orders relating
to the custody/visitation rights claimed by any of the
parents. The court is required to remain responsive not
merely to the legal consequences but also the impact
which the judicially ordained process may have upon the
welfare of the child.
54. In the present case because of the separation of the
parents from an early stage of childhood, it cannot be
denied that she has been deprived of the warmth of the
family where both the parents would unconditionally
shower their love, affection and care on the child. She
must have been a witness to bitter verbal duel between
her parents, if not any physical confrontation. At the same
time, the child will not be in a position to understand who
is responsible for the separation of the parents or the
discord in the family. But she would certainly feel the void
or the absence of unqualified attention from both the
parents. The child is also sometimes unable to take sides
with either of the parents which puts a strain on her. Thus,
irrespective of the charge of sexual abuse hurled against
the father which allegedly took place when the child was
about 2/3 years old, the child is already undergoing a
traumatic experience for the discord between the parents,
for which it appears the child is receiving therapeutic
treatment from a child psychologist. Under these
circumstances, the alleged sexual abuse by the father
which is stated to the pending before the competent court

- 49 -


would certainly have added additional psychological stress
on the child, to which aspect also this Court has to give
due consideration. We are informed that the Respondent
was granted anticipatory bail by the Bombay High Court in
Anticipatory Bail Application No. 1332 of 2024 on
13.06.2024 in connection with the POCSO case registered
against him. We have also perused the said anticipatory
bail order and the circumstances under which the
Respondent was granted anticipatory bail by the High
Court. This element of POCSO case against the
Respondent obviously has added an unpleasant dimension
to the present proceeding and placed an onerous
responsibility on the Court while dealing with this matter.
Thus, where a child who is already undergoing
certain trauma because of the rupture in the family
and deprived of undivided love, affection and care
from both the parents, and when there is also
allegation of sexual abuse by her own father, if she
is going to be subjected to further investigation at
the hands of psychologists as proposed to be done
by the impugned orders, we must seriously examine
as to whether such a course of action by virtue of
the judicial orders may lead to “secondary
victimisation” and “re-traumatisation”, would be
desirable or not. In short, will this judicially
ordained process be in the best interest of the child?
55. Courts must remain alive to the distinction between
therapeutic engagement intended to support healing and
recovery of the child, and repeated evaluation as part of
adversarial processes undertaken in aid of litigation to
vindicate the claim of the rival parties, which may prove to
be highly stressful causing mental and emotional strain on
the child. While the former may, in appropriate cases, aid
the emotional rehabilitation of the child, the latter carries
the potential of converting the child into an object of
continuous forensic scrutiny to satisfy the claim of the
parents and an unintended casualty in the legal tug of war
between two bickering parents. The justice delivery
system must, therefore, guard against any process which
has the effect of prioritizing adversarial claims of litigating
parties over the emotional safety and psychological

- 50 -


integrity of the child, thus, compromising with the welfare
of the child.
56. The principle that the child must not be
unnecessarily exposed to repeated legal or quasi-
legal processes has now become an integral
component of child-centric adjudication. The doctrine
of “best interest of the child” cannot be confined to
determining ultimate safe custody arrangements alone; it
must also address the procedural architecture through
which courts engage with the child during the pendency of
proceedings. Judicial procedures themselves must,
therefore, conform to standards of sensitivity, minimum
intrusion and psychological safety of the child.
57. This Court has repeatedly emphasized that in matters
concerning minors, the child cannot be treated as a
passive subject of litigation. The Court, while
exercising jurisdiction in such matters, rather, exercising
parens patriae jurisdiction, bears an independent and
overriding obligation to protect the dignity and welfare of
the child irrespective of the competing positions adopted
by the parties. Consequently, even where one or both
parents seek evaluative or therapeutic intervention, the
Court must independently assess whether the proposed
process is genuinely necessary, proportionate and
conducive to the welfare of the child.
58. It must also be recognised that the impact of
psychological evaluation upon a child cannot be assessed
merely by reference to the formal nature of the process.
The number of professionals interacting with the child, the
frequency of sessions, the context in which such
evaluation is undertaken, and the surrounding adversarial
environment may collectively influence the emotional
experience of the child. A process which may appear
clinically benign in abstraction may nevertheless become
psychologically stressful when situated within ongoing
contentious litigation involving allegations of abuse by one
of the parents.
59. This Court in “ Thrity Hoshie Dolikuka v.
6
HoshiamShavaksha Dolikuka , cautioned that
repeated interviews conducted with the tender

- 51 -


minor mind and resultant strain can adversely affect
the welfare of the child. It was thus, observed as
follows:
“26. In the facts and circumstances of this case we
are however, not inclined to interview the minor
daughter, as we are satisfied in the present case that
the minor is not fit to form an intelligent preference
which may be taken into consideration in deciding
her welfare. We have earlier set out in extenso the
various orders passed by the various learned Judges
of the Bombay High Court after interviewing the
minor and the learned Judges have recorded their
impressions in their judgments and orders. The
impressions as recorded by the learned Judges of the
Bombay High Court, go to indicate that the minor has
expressed different kinds of wishes at different times
under different conditions. It also appears from the
report of the Social Welfare Expert that these
interviews cast a gloom on the sensitive mind of the
tender girl and caused a lot of strain and depression
on her. Torn between her love for both her parents
and the acrimonious dispute between them resulting
in the minor being dragged from court to court, we
can well appreciate that the sensitive mind of the
minor girl is bound to be sadly affected. Though the
girl is quite bright and intelligent as recorded by the
learned Judges of the Bombay High Court in their
orders after their interviews with the girl who is of a
tender age and is placed in a very delicate and
embarrassing situation because of the unfortunate
relationship and litigation between her parents for
both of whom she has great deal of affection, she is
not in a position to express any intelligent preference
which will be conducive to her interest and welfare.
Mature thinking is indeed necessary in such a
situation to decide as to what will ensure to her
benefit and welfare. Any child who is placed in such
an unfortunate position, can hardly have the capacity
to express an intelligent preference which may
require the court's consideration to decide what
should be the course to be adopted for the child's
welfare. The letters addressed by the daughter to her
mother from Panchganiand also a letter addressed by
her to her aunt (father's sister) also go to show that
the minor cannot understand her own mind properly
and cannot form any firm desire. We feel that

- 52 -


sending for the minor and interviewing her in the
present case will not only not serve any useful
purpose but will have the effect of creating further
depression and demoralisation in her mind.”
60. Equally important is the requirement that judicially-
directed psychological processes retain institutional
neutrality and welfare orientation. The moment such
evaluation begins to assume the character of an
adversarial exercise intended to validate or discredit
allegations made by the child, the process risks losing its
therapeutic legitimacy and may undermine the confidence,
comfort and psychological safety of the child participating
therein.
61. Section 12 of the Family Courts Act, 1984 enables the
court to secure the services of a medical expert or such
person, whether related to the parties or not, including a
person professionally engaged in promoting the welfare of
the families as the court may think fit for the purpose of
assisting the Family Court in discharging its functions.
Thus, though, the Act does not prohibit seeking assistance
of any person even if she is related to the parties,
ultimately, it is the court which has to decide as to the
steps that would be required to be taken to ascertain what
is in the best interest of the child and thereafter, pass
appropriate orders, more particularly in the context of
custody of child where the court exercises the parens
patriae jurisdiction. Hence, it would be desirable for the
court to appoint a neutral expert/psychologist, who may,
however, interact with the experts nominated by the
parties if the court deems appropriate.
62. These principles, in our considered view, constitute
the broader doctrinal backdrop against which the legality
and propriety of the impugned directions issued by the
High Court are required to be assessed.
63. The first impugned order dated 27.04.2023 passed by
the High Court modified its earlier direction dated
07.01.2023 by substituting the expression “independent
expert” with the expression “panel of experts”. The
subsequent order dated 07.12.2023 thereafter proceeded
to constitute a four-member panel comprising of multiple

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psychologists and professionals for evaluation of the minor
child.
64. In our considered view, the approach adopted by the
High Court suffers from a fundamental flaw in so far as the
Court failed to sufficiently examine the effect which
repeated and multilayered evaluative processes conducted
by numerous evaluators may have upon the psychological
well-being of the child.
65. We are in consensus of the fact that the earlier order
issued by the High Court on 07.01.2023 for appointment
of an independent expert specialised in child psychology
was not challenged by the Appellant, and before the High
Court the Appellant also had proposed a panel of
psychologists before the High Court passed the
subsequent impugned order dated 27.04.2023. However,
this legal hurdle for the Appellant may not be come in the
way when we are considering the welfare of the child to be
the most important consideration while dealing with the
impugned orders, especially when the court acts as the
parens patriae for the child.
66. Significantly, the original order dated 07.01.2023 had
directed appointment of “an independent expert
specialized in child psychology”. The emphasis in the
original direction was therefore, clearly on independence,
neutrality and limited intervention. However, by the
subsequent order dated 27.04.2023, the High Court
altered the very nature of the exercise by substituting the
singular expression “expert” with “panel of experts”. This
modification, in our considered opinion, cannot be treated
as a mere procedural or semantic alteration devoid of
substantive consequences. The distinction between
evaluation by one independent professional and repeated
interaction with a panel of multiple experts is significant
and not merely administrative in nature. The change
directly bears upon the extent of psychological exposure to
which the child may potentially be subjected to.
…. …. ….
68. The High Court, while directing constitution of a
panel of experts, also failed to record any reasons
demonstrating:

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(i) why evaluation by one independent expert
was inadequate;
(ii) why interaction with multiple professionals
would be necessary;
(iii) how the proposed process would comport
with the principle of minimum intrusion; and
(iv) whether the possibility of re-traumatisation
had been adequately considered.
69. The absence of such analysis assumes considerable
significance in the facts of the present case where the
child is also allegedly a victim under the POCSO Act and
had admittedly undergone interactions with multiple
agencies during the course of investigation and related
proceedings.
70. The principle underlying Section 33(5) of the
POCSO Act, though arising in the context of criminal
trial, reflects a broader recognition that repeated
engagement of a child victim in legal processes may
itself become a source of trauma. The said principle,
though not mechanically applicable to custody
proceedings, nevertheless provides important doctrinal
guidance while evaluating processes involving repeated
psychological interaction with a child victim.”

(Emphasis supplied at each instance)
16. It would not be inapt to quote certain reports showcasing
that repeated, lengthy or harsh cross-examination would have
adverse impact on the psychological well-being of sexually abused
children.

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16.1. "THE EMOTIONAL EFFECTS OF TESTIFYING ON
8
SEXUALLY ABUSED CHILDREN ":
“…. …. ….
Child sexual abuse presents complicated issues of
physical, emotional, and psychological trauma for its
victims.Being part of a court case is generally a
stressful experience for adults. Picture a child in
that situation—thrust into a process with adult
language, rules, and procedures and repeatedly
questioned about the intimate details of an
experience that is foreign to most children—one in
which the child is expected to proclaim his or her
victimization before an audience composed mostly
of strangers.
…. …. ….
Based on these studies, it cannot be stated conclusively
that testifying is either harmful or beneficial to sexually
abused children. Testifying may impede the improvement
process for some children (the Denver study), or it may
enhance the recovery of others (the North Carolina study).
The studies did have the following similar findings:
✦
Before testifying, all children scored high on
measures of stress and anxiety.
✦
Maternal support was associated with improvements in
the children's mental health.
✦
Children who testified more than once tended not
to improve as much as children who testified only
once or not at all.

8

WHITCOMB, GOODMAN, RUNYAN AND HOAK, National Institute
of Justice, Research in Brief, U.S. Department of Justice, Office of
Justice Programs, April 1994 (NCJ 146414).

- 56 -


✦
Virtually all of the children improved with time,
regardless of their experiences in the criminal justice
system.
…. …. ….
As early as 1969, Vincent DeFrancis, then Director of the
Children's Division of the American Humane Society, wrote
that child victims were exposed to additional trauma by
the legal system, and especially by the repeated
questioning that occurred during the preliminary
investigation and through the time of trial. …
Psychiatrists have written that testifying is
inherently stressful for children and possibly
traumatic in itself. One psychiatrist stated that, "no
matter how well the child has been prepared,
testifying can cause distress." …
…. …. ….
Follow up assessments of the children's mental health
revealed that:
● Three months after testifying, there was no significant
difference in improvement over initial intake levels of
stress and anxiety between children who testified and
children who had not testified.
● Seven months after testifying, children who
testified showed significantly less improvement than
their counterparts who did not testify.
● At the final follow-up, after case disposition, there was
again no significant difference between children who
testified and children who did not testify, although some of
the testifiers still exhibited some adverse effects in the
form of increased behavioral disturbances.
● Maternal support, measured at the time children initially
disclosed the abuse, was positively related to
improvements in the children's well-being.

- 57 -


The researchers concluded that testifying in criminal court
has adverse effects on some children but, for most
children, these effects appear to diminish with time.
Children who testified more than once did not improve as
much, as measured by their scores on the CBCL-P, as their
counterparts who testified only once or not at all.
…. …. ….
Analysis of child interview data indicated that:
● Sexually abused children were highly distressed at
the time of the initial interview, regardless of
whether the perpetrators were intrafamilial or
extrafamilial.
● At the followup interview, a majority of the children
demonstrated improvement over their initial test scores.
● Testifying did not, in itself, have a significant
effect on children's mental health. However, a
significant adverse effect was found among children
who testified more than once or who experienced
lengthy or harsh cross examination.
● According to parental reports, testifying was far less
stressful for younger children (less than 8 years old) than
it was for older children.
● Maternal support strongly predicted the child's mental
health status at the followup interview.
…. …. ….
Additional analysis revealed that children who
testified and children who experienced multiple
interviews rated the process less helpful than
children who did not testify or who experienced
fewer interviews.
…. …. ….

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The OJJDP study found adverse effects only among
children who testified more than once or who underwent
severe cross examination.
…. …. ….
Of the differences in the court environments, this is
perhaps the most important distinction since witnesses in
criminal cases are expected to face defendants in court
and to submit to cross examination. …
Regardless of the differences between the courts, and
among the findings of the three studies described above,
when taken together, the available research suggests that
testifying, in itself, may not be traumatic for most
children. Adverse effects appear to be associated
with particularly negative experiences (such as
repeated testimony or harsh cross examination),
and further, to dissipate with time.
…. …. ….
Based on the results of these studies, it cannot be stated
conclusively that testifying is either harmful or beneficial
to sexually abused children. One consistent and
encouraging finding should be highlighted. Virtually all of
the children improved emotionally, regardless of their
experiences in court. At worst, testifying may impede the
improvement process for some children (as the Denver
study found); at best, it may enhance their recovery (as
the North Carolina study found). …
The Denver study provides some evidence that certain
children deserve special attention and, perhaps,
consideration of appropriate interventions to help them
testify. These are children who were more severely
abused, lacked family support, were interviewed
repeatedly during the investigation process, or expressed
fear of the defendant in court.
Limit the number of hearings. In all the studies,
children who testified more than once tended not to
improve as much as children who testified only once

- 59 -


or not at all. To the extent possible, prosecutors should
seek to waive unnecessary court appearances by, for
example, initiating cases via the grand jury, rather than a
preliminary hearing, or by holding competency hearings
immediately preceding a child's testimony, rather than as
a separate appearance.”

It is in this regard that the United Nations has published a
handbook for professionals and policymakers on justice in matters
involving child victims and witnesses of crime. It become apposite
to notice certain observations in the handbook.

16.2. UNITED NATIONS OFFICE ON DRUGS AND CRIME,
HANDBOOK FOR PROFESSIONALS AND POLICYMAKERS ON
JUSTICE IN MATTERS INVOLVING CHILD VICTIMS AND
9
WITNESSES OF CRIME :
"…. …. ….
Thirdly, the experience of testifying in court is very
stressful for children. Fears and frustrations they may
have regarding testifying in court include facing the
accused and/or the public, describing intimate, shameful,
details in a case of sexual abuse, not being able to
understand the questions put to them, looking ludicrous,
and so forth.

9
UNODC, Justice in matters involving Child Victims and Witnesses of
Crime (2009), Ch.VIII.

- 60 -


…. …. ….
Limiting the contacts of vulnerable victims and witnesses
with the justice process constitutes another way of
minimizing the inconvenience of their participation in the
proceedings. In some cases, the child may have to
repeat the same statement to law enforcement
officials, social workers, staff of non-governmental
organizations, psychologists, experts, investigating
judges and trial judges, in addition to being
available for questioning by the prosecution and
defence. The more people the child meets during an
investigation, the more stressful it is for him or her.
Repetition of statements may also lead the child to
feel that the process is useless or that the previous
versions of the statement were "not good enough"
and need improvement. It can be perceived as "not
being heard" or "not being believed", with several
repercussions on his or her trust and emotions.
In order to minimize unnecessary stress for the child, a
single interview with child victims and witnesses
should be preferred. This single interview would take
place during the pretrial (investigation) phase and might
be conducted, depending on each domestic legal system,
by law enforcement investigators, prosecutors or
investigative judges. As mentioned earlier, child advocacy
centres, where they exist, have the advantage of limiting
the number of interviews. It is important at the stage of
this first and only interview to take measures in order to
keep an accurate record of the evidence: such a record
could be achieved, depending on procedural legislation
and the technological means available, by way of a written
statement or audio or video recording of the interview …
…. …. ….
(d) Another solution that may fit procedural requirements
of common law countries is, as provided for in Australia,
to reserve the appearance of victims for the most
crucial phase of the proceedings, namely his or her
testimony in court at trial, thereby exempting him or
her from attending pretrial proceedings, such as the
committal hearing (see box).

- 61 -


Notwithstanding the inquisitorial or adversarial nature of
criminal procedure, the use of pre-recorded child
evidence at trial should be encouraged.
…. …. ….
Intimidation is most likely endured during the cross-
examination phase. The Guidelines address this
particular mode of questioning in paragraph 31 (c). In
jurisdictions where this practice is common, cross-
examination and other forms of questioning of the child
that are undertaken in an insensitive manner by actors
such as law enforcement officials, prosecutors, judges or
defence counsels are frequently mentioned as one of the
most stressful aspects for children of the criminal justice
process.
The right of the accused to question or have questioned a
witness is sometimes used to intimidate a child witness.
Defence lawyers may, for instance, ask questions beyond
the child's developmental level and use hostile tactics that
can have harmful effects on the child. In particular, in a
case of sexual abuse, the child victim may be the only
witness and successful prosecution can rest almost
exclusively upon the evidence he or she provides. Tactics
used by defence lawyers, which should be prevented
by judges, include (a) building up the child's trust
and then destroying it, thereby recreating the child's
experiences at the hands of the abuser; (b) asking
irrelevant questions specifically intended to upset
the child; (c) confusing the child with repetitive
and/or rapid questioning, repeated interruptions to
responses or by demanding unrealistically specific
times and details; (d) asking the child to estimate
the time of an occurrence or to provide the number
or sequence of events, to which the child is led to
respond by silence or with an acknowledgement that
he or she does not know or an inaccurate answer;
(e) stating that the child had consented to the
activity or subjecting the child to questions
regarding their sexual history.

- 62 -


Presiding judges should exercise a close scrutiny and strict
supervision of the cross-examination of children.”

(Emphasis added at each instance)
It would have been an altogether different circumstance if the
victim had not been cross-examined at all. She has been cross-
examined at length on various dates. Therefore, the order
permitting recall of the victim for further cross-examination, on
the very same instance or on the very same material would
undoubtedly become abuse of the process of the law and would
re-traumatize the child. “ When the victim before the Court is a
child, the process of justice must never become another
wound inflicted in the pursuit of justice”.

17. In the light of the preceding analysis, the order is
rendered unsustainable and thus must be obliterated. Accordingly,
the following:
ORDER
(i) Writ Petition is allowed.

- 63 -


(ii) Order dated 13-03-2024 passed in Spl.C.C.No.2065 of
2022 by the Additional City Civil and Sessions Judge,
FTSC III, Bengaluru in allowing the application filed
under Section 311 of the Cr.P.C., stands quashed.

Consequently, I.A.No.1 of 2026 also stand disposed.


This Court places its appreciation to the able assistance
rendered by Mr. Harsh Nassa, Law Clerk cum Research Assistant
attached to this Court.



Sd/-
(M.NAGAPRASANNA)
JUDGE


bkp