Gauhati High Court allows fresh plea to recall POCSO victim, permits defence questions and materials to be submitted in a sealed cover

The petitioner/accused, facing trial in Special (POCSO) Case No. 46/2022 before the Special Judge, POCSO, Sonitpur, challenged the order dated 4 August 2025 refusing to recall the victim/PW-1 for further cross-examination under Section 348 of the BNSS, corresponding to Section 311 of the CrPC.

The victim had been examined and cross-examined at length on 21 February 2023.

The defence later sought recall on the ground that new evidence and material circumstances had emerged, while undertaking not to repeat previous questions and to limit the examination to relevant ambiguities and contradictions.

The Trial Court rejected the application because the defence had not identified the specific material allegedly omitted during the earlier cross-examination.

Whether the Trial Court was justified in refusing to recall the victim for further cross-examination merely because she had previously been cross-examined at length and the defence had not disclosed the precise material proposed to be put to her?

Whether, in a POCSO trial, the accused should be afforded a liberal opportunity to recall and further cross-examine the victim in view of the statutory presumption under Section 29 of the POCSO Act?

Whether the restriction under Section 33(5) of the POCSO Act against repeatedly calling a child to testify applied where the victim was no longer a child at the time of the impugned order?

The Court considered Section 528 of the BNSS, under which the inherent jurisdiction of the High Court was invoked, and Section 348 of the BNSS, corresponding to Section 311 of the CrPC, which empowers the court to summon, examine, recall, or re-examine a witness where such evidence is essential for a just decision.

Relying principally on Rajaram Prasad Yadav v. State of Bihar, (2013) 14 SCC 461, the Court reiterated that the power to recall a witness must be exercised judicially, for discovering the truth and securing a just decision, and not arbitrarily or merely to fill a lacuna; however, a court should adopt a fair and liberal approach where additional evidence is necessary to avoid miscarriage of justice.

Section 33(5) of the POCSO Act requires the Special Court to ensure that a child is not repeatedly called to testify, while Section 2(d) defines a child as a person below 18 years of age.

The Court also considered Section 29 of the POCSO Act, which creates a statutory presumption against the accused, and held that this heightened burden makes it particularly important that the accused receive a meaningful opportunity to establish the defence.

The High Court held that the victim’s earlier lengthy cross-examination did not, by itself, rule out the possibility that genuinely new material had subsequently emerged.

At the same time, the defence application was deficient because it did not identify the new material or the specific matters requiring further cross-examination.

The Court recognised that requiring full disclosure of the proposed defence could improperly expose the accused’s case; nevertheless, the Trial Court needed some basis to determine whether recall was essential for a just decision.

In a POCSO prosecution, the statutory presumption under Section 29 places the accused under a significant evidentiary burden, warranting a liberal approach to applications seeking an effective opportunity to cross-examine the prosecution witness.

The Court therefore devised a procedural safeguard: the defence could submit the relevant materials and proposed questions in a sealed cover, enabling the Trial Court to assess their necessity without disclosing the defence strategy.

Since the victim was no longer below 18 years of age when the impugned order was passed, Section 33(5) was held not necessarily attracted at that stage.

The Trial Court was directed to consider the application in accordance with the High Court’s observations without disclosing the defence case.

If the application were allowed, the recall and further cross-examination were to be completed within 30 days thereafter.

The criminal petition was accordingly disposed of.