News Citation : 2026 LN (HC) 148 | 2026:CGHC:4937

January 29, 2026 : The Chhattisgarh High Court has set aside a trial court order that had allowed the recall of a minor survivor and her mother for further cross-examination in a POCSO case, holding that the move was contrary to the spirit of child protection laws and established judicial principles.

In its order dated January 29, 2026, Justice Sanjay Kumar Jaiswal allowed a criminal miscellaneous petition challenging the September 16, 2025 order passed by the Additional Sessions Judge, FTSC (POCSO), Ambagarh Chowki. The trial court had permitted the accused to recall the survivor and her mother under Section 311 of the Code of Criminal Procedure for further cross-examination.

The prosecution case relates to a chargesheet filed in 2022 against the accused under Sections 376, 376(3), and 376(2)(f) of the IPC along with Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012. The survivor’s mother was examined in July 2023, and the survivor’s testimony was completed in June 2024 after multiple adjournments.

According to the High Court record, the defence had been granted several opportunities to cross-examine both witnesses. On various dates, either adjournments were sought by the defence or proceedings were delayed due to external reasons. Despite this, the examination of both witnesses was eventually concluded. Nearly 14 months later, the accused moved an application under Section 311 CrPC seeking their recall, stating that certain questions had not been put earlier.

The High Court noted that the application did not spell out any specific or compelling reason for reopening the cross-examination. It also observed that during the pendency of the case, the accused had changed counsel more than once.

Referring to Section 33(5) of the POCSO Act, which mandates that a child should not be called to court repeatedly for testimony, the court emphasised that the special statute is designed to protect child victims from unnecessary trauma. It cited the Supreme Court’s ruling in Madhab Chandra Pradhan v. State of Odisha, where it was held that mechanically allowing recall applications in POCSO trials defeats the purpose of the law, particularly when ample opportunity for cross-examination has already been provided.

The High Court also relied on the principles laid down in State (NCT of Delhi) v. Shiv Kumar Yadav, where the Supreme Court clarified that recall of witnesses cannot be permitted merely because a counsel was changed or claims that earlier cross-examination was inadequate.

While acknowledging the broad discretionary power under Section 311 CrPC to summon or recall witnesses in the interest of justice, the court stressed that such power must be exercised with caution, especially in cases under the POCSO Act. The objective is to secure a fair trial without causing undue hardship to the victim.

After examining the record, the High Court concluded that the trial court had failed to consider the statutory safeguards under Section 33(5) of the POCSO Act and the settled legal position. It therefore set aside the September 16, 2025 order and allowed the petition.

Case Number : Cr. M. P. No.-3495 of 2025