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CDJ 2026 TSHC 726 My Notes print Preview print print
Court : High Court for the State of Telangana
Case No : Criminal Petition No. 10101 of 2026
Judges: THE HONOURABLE MR. JUSTICE J. SREENIVAS RAO
Parties : Maidham Avinash @ Bunny Versus The State of Telangana & Another
Appearing Advocates : For the Petitioner: Nadipally Ananda Rao, Advocate. For the Respondents: Public Prosecutor.
Date of Judgment : 30-07-2026
Head Note :-
POCSO Act - Section 33(5) -
Judgment :-

1. This Criminal Petition has been filed by the petitioner/accused No.2 aggrieved by the order dated 25.03.2026 passed by the learned Special Sessions Judge for Expeditious Trial and Disposal of Rape Cases and Cases under the Protection of Children from Sexual Offences Act, Warangal, (for short ‘the trial Court’) in Crl.M.P.No.96 of 2026 in SC (POCSO) No.42 of 2023, whereby the trial Court dismissed the petition filed by the petitioner seeking to recall PWs.1, 2 and 7 for cross-examination.

2. Heard Mr. Nadipally Ananda Rao, learned counsel for the petitioner, Mr.Nimmala Sheshidhar, learned counsel for respondent No.2, and Mr. Jithender Rao Veeramalla, learned Additional Public Prosecutor for respondent No.1-State.

3. Learned counsel for the petitioner submitted that the petitioner is accused No.2 in S.C. (POCSO) No.42 of 2023, for the offences under Sections 366, 376(3), 376(2), 376(2)(n), 376-D, 392 and 506 r/w 34 of the Indian Penal Code, 1860 (for short ‘the IPC’) and Section 5(l), 5(g) r/w 6 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘the POCSO Act’). There are several omissions and contradictions in the evidence of PWs.1, 2 and 7, however, based on the submission made by the junior counsel appearing on behalf of the petitioner, the trial Court adopted the cross-examination of accused No.3. He further submitted that the cross-examination of PWs.1, 2 and 7 is very much essential to prove the innocence of the petitioner. Therefore, the petitioner filed Crl.M.P.No.96 of 2026 invoking the provisions of Section 311 of Cr.P.C. to recall PWs.1, 2 and 7 for cross-examination. The trial Court, without properly considering the contentions raised by the learned counsel for the petitioner, erroneously dismissed the said petition on 25.03.2026 only on the ground that by virtue of bar under Section 33(5) of the POCSO Act, though in fact, the said provision does not impose an absolute bar. If PWs.1, 2 and 7 recalled, no prejudice is going to be caused to the prosecution as well as the witnesses. Unless PWs.1, 2 and 7 are recalled for cross-examination, the petitioner will be put to great hardship.

4. Learned counsel for respondent No.2 submitted that he is not having any objection to recall PWs.1, 2 and 7.

5. Per contra, learned Additional Public Prosecutor submitted that the petitioner filed Crl.M.P.No.96 of 2026 before the learned trial Court without assigning any reasons. Though evidece of PWs.1 and 2 was closed on 26.02.2024 and the evidence of PW.7 was closed on 03.09.2024, the petitioner filed Crl.M.P.No.96 of 2026 on 11.03.2026 for recalling PWs.1, 2 and 7, after lapse of more than one year. The trial Court has rightly dismissed the petition and there are no grounds to interfere with the impugned order passed by the trial Court.

6. Having considered the rival submissions made by the respective parties and after perusal of the material available on record, it reveals that the evidence of PWs.1 and 2 was closed on 26.02.2024 and the evidence of PW.7 was closed on 03.09.2024. The petitioner filed Crl.M.P. No.96 of 2026 on 11.03.2026 i.e. after lapse of more than one year. The only reason assigned in the petition is that at the time of cross-examination of PWs. 1, 2 and 7, the junior counsel appeared on behalf of the petitioner and he simply adopted the cross-examination made by accused No.3. The petitioner is very much aware about the factum of closure of the evidence of PWs.1, 2 and 7. However, the petitioner has not taken immediate steps to file a petition. Further the petitioner has not assigned any reason, much less specific reasons, as to why he could not file the said petition immediately after closure of the evidence of PWs.1, 2 and 7.

7. It is relevant to mention that as per the Section 33(5) of POCSO Act, child witness should not be called repeatedly to testify in the Court. The record discloses that PW.1 was cross-examined at the instance of other accused.

8. It is very much relevant to mention that in Madhab Chandra Pradhan & Others v. State of Odisha (Special leave petition (Crl.) No. 10082 of 2024 dated 05.08.2024.), the Hon’ble Supreme Court held that though the Court has wide powers to recall witnesses, such power must be exercised cautiously and only when it is essential for the just decision of the case, keeping in view the mandate under Section 33(5) of the POCSO Act that a child victim should not be repeatedly called to testify. Similar views were expressed in Mohsin Khan v. State of Delhi (2025 SCC OnLine Del 5609), Neelam & Another v. State of U.P. (2026 SCC OnLine All 51), Vikas v. State (2020 SCC OnLine Del 3788), and Jerin Joy v. State of Kerala (2024 SCC OnLine Ker 2344), wherein it was held that recall of witnesses cannot be permitted merely to fill up lacunae.

9. Taking into consideration the facts and circumstances of the case, in view of the specific bar under Section 33(5) of the POCSO Act and the precedent decisions, this Court is not inclined to recall PW.1 for further cross-examination, even though learned counsel appearing on behalf of respondent No.2 submitted that he is not having any objection.

10. Insofar as the other witnesses i.e. PWs.2 and 7 are concerned, the specific case of the petitioner is that the junior counsel appearing on his behalf simply adopted the cross-examination of accused No.3. During the course of hearing, learned Additional Public Prosecutor as well as learned counsel for respondent No.2 has not seriously opposed. It is trite law that due to mistake on the part of the counsel, the party should not be suffered.

11. Taking into consideration the peculiar facts and circumstances of the case and to render substantial justice to the parties, this Court is inclined to give an opportunity to the petitioner to cross-examine PWs.2 and 7 subject to the following condition;

               That the petitioner shall pay an amount of Rs.5,000/- (Rupees five thousand only) each to PWs.2 and 7 and to conclude the cross-examination of PWs.2 and 7 on the specified date as fixed by the learned trial Court. In default, the learned trial Court is entitled to proceed with the matter in accordance with law.

12. With the above direction, the Criminal Petition is allowed in part.

Miscellaneous applications, pending if any, shall stand closed.
 
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