After Legal-Aid Counsel Cross-Examined Victim, Gujarat HC Rejects POCSO Accused’s Bid To Recall Her For Unasked Questions

In brief

The question

1. Whether the trial court erred in refusing to recall the victim for further cross-examination under Section 348 of the BNSS.

The court held

The High Court held that the trial court committed no infirmity or illegality in rejecting the recall application.

It also directed

It dismissed the petition and discharged the rule; the requested further cross-examination of the victim was not permitted.

01Facts

After charges were framed in a POCSO case, the victim’s examination-in-chief was recorded on 19 November 2025, and cross-examination was deferred to 26 November 2025.

¶ 3

On that date, the petitioner’s counsel sought an adjournment, which the trial court rejected; it appointed a legal-aid advocate to cross-examine the witness.

¶ 5

After being released on bail and engaging new counsel, the petitioner applied under Section 348 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), to recall the victim, arguing that he could not give proper instructions while appearing from jail by video conference and that material questions had not been asked.

¶ 9

The trial court rejected the application, and the petitioner challenged that order before the High Court.

¶ 9

02Issues

i.1. Whether the trial court erred in refusing to recall the victim for further cross-examination under Section 348 of the BNSS.

¶ 5–6, 12–14

ii.2. Whether the petitioner’s claimed inability to communicate instructions while appearing by video conference justified recalling the victim after the earlier opportunity to cross-examine her.

¶ 5, 9, 11–14

03Law Applied

Section 346 of the BNSS requires trial proceedings to continue from day to day, restricts adjournments, and permits the court, where a witness is present but a party or counsel is absent or unready, to record the witness’s statement and make appropriate orders, including dispensing with cross-examination.

¶ 10

Section 348 of the BNSS empowers the court to summon, recall, or re-examine a witness; the corresponding principles under Section 311 of the Code of Criminal Procedure, 1973, as stated in Rajaram Prasad Yadav v. State of Bihar, require that recall be exercised judiciously, for strong and valid reasons, where necessary to secure a just decision—not merely to fill a lacuna—and with due regard to a fair trial.

¶ 12–13

Provisions in the judgment · 15 · Linked ones open on LawLens

Bharatiya Nagarik Suraksha Sanhita, 2023 Section 346 Section 348

Bharatiya Nyaya Sanhita, 2023 Section 64 Section 66 Section 67 Section 68 Section 70 Section 87 Section 137 Section 346

Protection of Children from Sexual Offences Act, 2012 Section 4 Section 6 Section 8 Section 12

Code of Criminal Procedure, 1973 Section 311

04Reasoning

The High Court found that the petitioner had an opportunity to cross-examine the victim: after her examination-in-chief, cross-examination was deferred, but the adjournment sought on the next date was rejected under Section 346 of the BNSS. The trial court then appointed a legal-aid advocate to conduct the cross-examination, and the High Court considered that the prescribed procedure had been followed.

¶ 9–11

Applying the recall principles in Rajaram Prasad Yadav, the Court held that the petitioner’s wish to ask questions omitted during the earlier cross-examination did not, on the stated circumstances, justify recalling the victim; recall could not be used merely to fill that perceived gap, particularly in a POCSO case.

¶ 12–13