Recall of a child victim is unwarranted merely to confront her with subsequent witness statements.

The petitioner, Accused No. 3 in S.C. Spl. No. 189 of 2025, was being prosecuted under Section 61(1) of the Bharatiya Nyaya Sanhita, 2023 and Sections 5(l) read with 6 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”).

The victim was examined as PW.1 and was cross-examined at length on 22 September 2025.

Subsequently, her brother was examined as PW.3 on 22 December 2025.

During PW.3’s cross-examination, facts allegedly emerged concerning PW.1’s relationship and association with one Avinash, which the petitioner claimed were relevant to the defence.

The petitioner thereafter filed an application under Section 311 of the Code of Criminal Procedure, 1973 (“Cr.P.C.”), seeking recall of PW.1 for further cross-examination and for confronting her with the alleged subsequent admissions of PW.3.

The trial Court dismissed the application on 16 May 2026, holding that PW.1 had already been cross-examined at length, that the relevant material—including the DNA report—was already available to the defence, and that the application was not based on genuinely new material.

The petitioner challenged that order under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”).

Whether PW.1, a child victim, ought to be recalled under Section 311 Cr.P.C. for further cross-examination merely because facts concerning her alleged relationship with Avinash were elicited during the subsequent cross-examination of PW.3?

Whether recall was essential to secure a fair opportunity of defence, notwithstanding the protection against repeatedly calling a child witness under Section 33(5) of the POCSO Act?

Whether the trial Court’s refusal to recall PW.1 suffered from illegality, irregularity, or jurisdictional error warranting interference under Section 528 BNSS?

Section 311 Cr.P.C. confers a wide but discretionary power on the Court to recall and re-examine a witness where such evidence is essential for a just decision; it cannot be used routinely to fill lacunae, introduce a roving enquiry, or prolong the trial.

Section 33(5) of the POCSO Act requires that a child witness should not be repeatedly called to testify, thereby protecting the child from repeated appearances and further trauma, although the provision is not an absolute prohibition where recall is genuinely essential for a fair trial.

Relying on State (NCT of Delhi) v. Shiv Kumar Yadav, AIR 2015 SC 3501, and Madhab Chandra Pradhan v. State of Odisha, S.L.P. (Crl.) No.10082 of 2024, decided on 5 August 2024, the Court held that recall must be exercised cautiously and only when essential for the just decision of the case.

The Court also considered Mohsin Khan v. State of Delhi, Neelam v. State of U.P., Vikas v. State, and Jerin Joy v. State of Kerala, which reiterate that recall is impermissible merely to cure deficiencies or fill gaps in cross-examination.

Conversely, the Court noted that recall may be allowed where cross-examination was wholly inadequate on a material issue and denial would cause serious prejudice to the accused, as recognised in Shivanand Ramgonda Hegaje Patil v. State of Maharashtra.

The Court found that the petitioner had already received a full opportunity to cross-examine PW.1, whose evidence was closed on 22 September 2025.

The alleged facts regarding Avinash were relied upon only after PW.3’s evidence was completed on 22 December 2025, and the petitioner waited until 25 March 2026 to seek recall without providing a satisfactory explanation for the delay.

The Court held that the alleged admissions of PW.3 did not, by themselves, justify recalling PW.1; any inconsistency between the evidence of PW.1 and PW.3 could be addressed during final arguments.

Further, the DNA report and other relevant documents had already been supplied to the defence and were available when PW.1 was cross-examined, so they did not constitute newly discovered material.

Since the proposed recall was not shown to be essential, and the application would effectively permit further cross-examination after an earlier extensive cross-examination of a child victim, the statutory protection under Section 33(5) of the POCSO Act weighed against recall.

The cases relied upon by the petitioner were distinguished because they involved either no effective cross-examination or wholly inadequate cross-examination causing serious prejudice, circumstances not present here.

It held that PW.1 was not required to be recalled merely to confront her with facts elicited from PW.3 or to develop matters that were already known to the defence.

The trial Court’s order dated 16 May 2026 dismissing Crl.M.P. No. 302 of 2026 was found free from illegality, irregularity, or jurisdictional error.

The criminal petition was accordingly dismissed, and all pending miscellaneous applications were closed.