A subsequent affidavit alone does not justify recalling a child witness under POCSO.

The petitioner challenged the order dated 25 July 2025 passed by the II Additional Sessions Judge, Link Court, Unchehara, District Satna, in S.C. No. 05/2024, rejecting his application under Section 311 of the CrPC/Section 348 of the BNSS for recalling and further cross-examining the prosecutrix, her mother, and witness Ramsakha.

The petitioner relied principally on an affidavit allegedly filed by the prosecutrix’s mother stating that the complaint was incorrect.

The State opposed recall, contending that the witnesses had already been examined and cross-examined, the prosecutrix was approximately ten years old, and Section 33(5) of the POCSO Act restricted repeated summoning of a child witness.

The High Court heard the parties and examined the record.

Whether the prosecutrix, her mother, and witness Ramsakha should be recalled for further cross-examination under Section 311 of the CrPC/Section 348 of the BNSS on the basis of the subsequent affidavit filed by the prosecutrix’s mother.

Whether the Trial Court’s refusal to recall the witnesses disclosed perversity, patent illegality, jurisdictional error, or failure of justice warranting interference in the High Court’s extraordinary jurisdiction.

Whether recall of the approximately ten-year-old prosecutrix was consistent with the protective mandate of Section 33(5) of the POCSO Act.

The Court applied Section 311 of the CrPC, corresponding to Section 348 of the BNSS, which permits recall and re-examination of a witness where such evidence is essential for a just decision, but requires the power to be exercised judiciously and not routinely.

Section 33(5) of the POCSO Act requires the Special Court to ensure that a child is not repeatedly called to testify, thereby protecting the child from unnecessary exposure and trauma.

Relying on Madhab Chandra Pradhan and Others v. State of Odisha, SLP (Crl.) No. 10082/2024, the Court held that the interaction between Section 311 CrPC and Section 33(5) POCSO must be assessed on the facts of each case and that recall cannot be claimed as a matter of course.

The Court further applied the principle that extraordinary jurisdiction under Section 482 CrPC is to be exercised sparingly and ordinarily does not permit substitution of the High Court’s discretion for a reasoned decision of the Trial Court absent manifest arbitrariness, perversity, patent illegality, or failure of justice.

The prosecutrix, her mother, and witness Ramsakha had already been examined and cross-examined, and the accused had availed the opportunity of cross-examination.

The only subsequent basis for recall was the mother’s affidavit asserting that the complaint was incorrect.

The Court held that the affidavit, by itself, did not establish that further examination of the witnesses was essential for a just decision, particularly when recall would expose a child prosecutrix of approximately ten years to repeated examination and cross-examination.

Applying the child-centric safeguard in Section 33(5) of the POCSO Act, the Court found no sufficient justification for recalling either the prosecutrix or the other witnesses.

It also found that the Trial Court had recorded a reasoned conclusion and that its order was neither perverse nor legally infirm.

Consequently, the restrictive standard governing interference under Section 482 CrPC was not satisfied.

It further held that the Trial Court’s order dated 25 July 2025 suffered from no perversity, patent illegality, jurisdictional error, or failure of justice.

The petition was accordingly dismissed, and no interference was made with the impugned order.