1. This Criminal Petition has been filed by the petitioner/accused aggrieved by the order dated 16.05.2026 passed in Crl.M.P.No.302 of 2026 in S.C. Spl. No.189 of 2025 by the learned Fast Track Special Judge for Trial and Disposal of Rape and POCSO Act Cases, Ranga Reddy District at L.B. Nagar (for short, ‘the trial Court’), whereunder the petition filed by the petitioner seeking recall of PW.1 for further cross-examination was dismissed.

2. Brief facts of the case:

The petitioner is an accused in S.C. Spl. No.189 of 2025 and facing prosecution for the offences punishable under Section 61(1) of the Bharatiya Nyaya Sanhita, 2023 (for short, ‘BNS’) and Section 5(l) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘the POCSO Act’). During the course of trial, the prosecution examined the victim girl, who is the daughter of respondent No.2, as PW.1, and her cross-examination was completed on 22.09.2025. Subsequently, the victim’s brother was examined as PW.3 on 22.12.2025 and thereafter, other witnesses were examined. The petitioner filed Crl.M.P.No.302 of 2026 under Section 311 of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) for further cross-examination of PW.1 on the ground that during the course of cross-examination of PW.3, certain new facts came on record and for confronting her with the subsequent admissions made by PW.3. The trial Court dismissed the said petition. Aggrieved by the same, the present criminal petition has been filed.

3. On 12.08.2026, learned Additional Public prosecutor submitted that pursuant to the order dated 03.08.2026, the Investigating Officer has served notice on respondent No.2 on 07.08.2026. In spite of the same, respondent No.2 has not chosen to enter appearance. Hence, this Court has no option except to proceed with the matter in accordance with law.

4. Heard Mr. B. Bhagath Sain, learned counsel for the petitioner, and Mr. Jithender Rao Veeramalla, learned Additional Public Prosecutor for respondent No.1-State.

5. Submissions of learned counsel for the petitioner:

               5.1. Learned counsel for the petitioner submitted that the victim girl was examined as PW.1 and was cross-examined by the defence. Subsequently, the prosecution examined PW.3, who is none other than the brother of PW.1, and during the course of his cross-examination, several material facts emerged for the first time touching upon the relationship of PW.1 with one Avinash and her association with him during the relevant period of her pregnancy, which facts have a direct bearing on the defence of the petitioner. In view of the said circumstances, the petitioner filed Crl.M.P.No.302 of 2026 seeking recall of PW.1 for the purpose of confronting her with the subsequent admissions made by PW.3. However, the learned trial Court, without properly considering the averments made in support of the petition and the contentions raised on behalf of the petitioner, erroneously dismissed the petition on the ground that PW.3 had not voluntarily deposed anything regarding the relationship of PW.1 with Avinash and that it was only during the course of cross-examination, the defence suggested and elicited the fact of relationship of PW.1 with Avinash. The learned trial Court further held that the petitioner had already cross-examined PW.1 at length and the facts relating to her relationship with Avinash were within the knowledge of the petitioner and the said facts could not be treated as newly discovered material warranting recalling of PW.1 for further cross-examination. It was further held that during the course of investigation, PW.1 was found to be pregnant and thereafter her pregnancy was medically terminated and fetal material was sent for DNA analysis. The DNA report available on record does not disclose any conclusive result against the petitioner. The DNA report was also very much available with the petitioner even after cross-examination of PW.1. The DNA report and other relevant documents had been furnished to the petitioner and he was fully aware of its contents and, therefore, had sufficient opportunity to cross-examine PW.1 with regard to the same during her earlier cross-examination. The trial Court, therefore, held that merely on the basis of the suggestion put by the defence counsel and the facts elicited during the cross-examination of PW.3 regarding Avinash, the petitioner was not entitled to recall of PW.1 for further cross-examination. The reasons assigned in the impugned order are contrary to law.

               5.2. He further submitted the embargo under Section 33(5) of the POCSO Act is not applicable to the facts and circumstances of the present case, especially the said provision does not impose an absolute prohibition for recalling a child witness. The statutory embargo is against unnecessary or repeated examination of a child and not against a recall necessitated by circumstances arising subsequently during the course of trial. He also submitted that the recall of PW.1 for the purpose of further cross-examination is very much necessary and by virtue of the impugned order, the petitioner is being deprived of an effective opportunity to test the veracity of the evidence on record. Hence, the impugned order passed by the learned trial Court is liable to be set aside and consequently, the petition deserves to be allowed.

               5.3. In support of his contention, he relied upon the principle laid down by the High Court of Bombay in Shivanand Ramgonda Hegaje Patil v. State of Maharashtra and another (2020 SCC OnLine Bom 10718); the Order of the High Court of Judicature at Madras passed in Crl.O.P.No.4131 of 2022 and Cr.M.P.No.2060 of 2022 dated 07.03.2022 between S. Ganeshan v. State; and the Order passed by the High Court at Calcutta in CRR/62/2025, dated 05.02.2026, between Shri Krishna Mohan Das v. The State.

6. Submissions of learned Additional Public Prosecutor :

               6.1. Per contra, learned Additional Public Prosecutor submitted that the petitioner filed Crl.M.P.No.302 of 2026 with an intention to drag on the proceedings on one reason or other reason and to fill up the gaps and the same is not permissible under law. The petitioner filed the petition basing on the evidence of PW.3 seeking recalling of PW.1 for further cross-examination with a view to confronting her with the alleged admission made by PW.3, and the same is also not permissible under law. Even according to learned counsel for the petitioner, if the depositions of PWs.1 and 3 are contradictory to each other, the petitioner is entitled to take advantage of the same during the course of hearing. The petitioner is not entitled to recall PW.1 merely for the purpose of confronting her with the alleged admission made by PW.3. The trial Court has rightly dismissed the petition by giving cogent reasons, especially in view of bar under Section 33(5) of the POCSO Act. Hence, the present Criminal Petition is devoid of merit and the same is liable to be dismissed.

Analysis

7. Having considered the rival submissions made by the respective parties and upon perusal of the material available on record, it reveals that the petitioner is an accused in SC.SPl.No.189 of 2025 and facing prosecution for the offences under Section 61(1) of the BNS and Section 5(l) read with Section 6 of the POCSO Act. The record discloses that on behalf of the prosecution, LW.2, who is the victim girl, was examined as PW.1 on 22.09.2025 and she was also cross-examined by the counsel for the petitioner. Thereafter, on 22.12.2025, LW.6, who is brother of victim girl, was examined as PW.3 and his evidence was closed on the same day. Thereafter, LW.12 was examined as PW.8, LW.13 was examined as PW.9 on 26.02.2026 and 25.03.2026 respectively, and other prosecution witnesses were also examined.

8. The record further reveals that on 25.03.2026, after a lapse of more than six months from the closure of the evidence of PW.1 and more than 2 ½ months from the closure of the evidence of PW.3, the petitioner filed Crl.M.P.No.302 of 2026 invoking the provisions of Section 311 of Cr.P.C. seeking to recall PW.1 for further cross-examination on the sole ground that during the course of cross-examination of PW.3, he stated that PW.1 was residing with one Avinash and was stated to have been married to him, and even prior to registration of the present crime, PW.1 had acquaintance and contact with the said Avinash. The said facts came on record for the first time during the evidence of PW.3. Therefore, an opportunity to put specific questions to PW.1 was necessary in order to test the veracity and correctness of the prosecution version. In such circumstances, the recall of PW.1 for further cross-examination is very much essential.

9. It is averred in the petition that as per the prosecution, PW.1 was found to be pregnant and thereafter her pregnancy was medically terminated and the fetal material was sent for DNA analysis. The DNA report did not establish any conclusive linkage and that the comparison of DNA profile with that of the petitioner was not possible. Even in the absence of any conclusive DNA evidence available on record, implicated the petitioner as an accused in the heinous offence. The petitioner was seeking to recall PW.1 only for a limited and specific purpose and do not have any roving or fishing enquiry. The prosecution filed a counter denying the averments made in the petition. The trial Court, after hearing the respective parties, dismissed the petition holding that the DNA analysis report was very much available on record, even at the time of cross-examination of PW.1. The copies of all the documents including the DNA report had already been furnished to the petitioner and the defence owned the same at the relevant point of time. The defence was already aware of the contents of the DNA report and the petitioner had given sufficient opportunity to cross-examine PW.1 on all aspects relating thereto her earlier cross-examination. Merely because certain facts were subsequently elicited during the course of cross-examination of another witness, the petitioner is not entitled to seek recall of PW.1 for further cross-examination.

10. The record also reveals that PW.1 was cross-examined by the counsel for the petitioner on 22.09.2025 at length. After closure of her evidence, PW.3 was cross-examined on 22.12.2025. Thereafter, other witnesses were examined including PW.8 on 26.02.2026 and PW.9 on 25.03.2026. The petitioner filed Crl.M.P.No.302 of 2026 on 25.03.2026, after a lapse of nearly 2 ½ months from the date of closure of the evidence of PW.3, without assigning any reasons, much less specific reasons.

11. Insofar as the contentions of the learned counsel for the petitioner that the petitioner filed petition seeking recall of PW.1 for the limited purpose of confronting her with subsequent admissions made by PW.3 and the deposition of PW.3 contains contradictions and that during his cross-examination, he stated new facts regarding relationship of PW.1 with Avinash, are concerned; merely basing on the deposition of PW.3, the petitioner is not entitled to seek recall PW.1 for further cross-examination, especially PW.3 evidence was closed on 22.12.2025, and thereafter, other witnesses were also examined. It is trite law that the petitioner is not entitled to seek recall of a witness merely on the basis of alleged contradictions or statements subsequently elicited from another witness during the course of trial and the party is entitled to put forth the contradictions of the depositions of prosecution witness during the course of hearing.

12. Further, as per sub-Section 5 of Section 33 of the POCSO Act, a child witness should not be called repeatedly to testify in the Court. The said provision is intended to protect the child from the hardship and trauma of repeated appearances and repeated examination before the Court. Merely subsequent deposition of PW.3 cannot be a ground for recalling PW.1 for further cross-examination, especially when the petitioner had already availed the opportunity to cross-examine PW.1. Hence the petitioner is not entitled to seek recalling of PW.1 for further cross-examination, particularly mandate under Section 35(3) of the POCSO Act.

13. It is relevant to mention that in Ag v. Shiv Kumar Yadav and Anr (AIR 2015 SC 3501), the Hon’ble Supreme Court considered the scope of recall of witnesses under Section 311 Cr.P.C. after the prosecutrix had already been extensively cross-examined. The Court held that the power to recall witnesses must be exercised only when such recall is essential for a decision of the case. It was observed that a witness cannot be recalled merely on the ground that a new counsel has been engaged or that the earlier counsel did not conduct the cross-examination effectively. The Hon’ble Supreme Court further held that repeated recall of witnesses would cause unnecessary delay in the trial and may amount to filling up lacunae in the defence, which is impermissible in law.

14. It is also 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 or when witnesses were already cross-examined at length.

15. The judgments relied upon by the learned counsel for the petitioner in S. Ganeshan (supra), the High Court of Madras held that where a heavy burden is caused on the petitioner to rebut the presumption which operates against him, and the crucial witnesses have not been cross-examined, the evidence stands unrebutted and it would amount to a case of no defence, resulting in grave prejudice to the accused. However, where the victim is now aged about 21 years and does not fall within the definition of “child” under Section 33(5) of the POCSO Act, 2012, an opportunity may be given to the accused to recall and cross-examine such crucial witnesses, in the interests of a fair opportunity of defence. In Shri Krishna Mohan Das (supra), the High Court of Calcutta held that where the cross-examination of prosecution witnesses is found to be deficient, casual or cryptic and such inadequate cross-examination may prejudice the accused in properly defending the case, the Court may permit re-cross-examination of the witnesses where it is absolutely essential for the accused to effectively defend in accordance without law. In Shivanand Ramgonda Hegaje Patil (supra), the High Court of Bombay held that the protection afforded to a child witness under Section 33(5) of the POCSO Act, which requires that the child should not be repeatedly called to testify, cannot be construed as an absolute prohibition against recalling a witness in every circumstance. The Court must balance the legislative object of protecting the child from repeated examination with the accused’s fundamental right to a fair trial and effective cross-examination. Where the existing cross-examination is wholly inadequate on a material aspect and denial of further opportunity would cause serious prejudice to the accused, recall may be permitted, particularly when the application is bona fide and the proposed cross-examination is confined to the necessary points.

16. The above said judgments are not applicable to the facts and circumstances of the present case on the ground that there was no denial of an opportunity of cross-examination to the petitioner. The petitioner was cross-examined PW.1 at length and her evidence was closed on 22.09.2025 and PW.3’s evidence was closed on 22.12.2025 and the evidence of PWs.8 and 9 was closed on 26.02.2026 and 25.03.2026. Thereafter, the petitioner filed Crl.M.P.No.302 of 2026 seeking to recall PW.1 for further cross-examination only on 25.03.2026, especially bar under Section 35(3) of the POCSO Act.

17. For the foregoing reasons as well as the precedent decisions, this Court does not find any illegality, irregularity or jurisdictional error in the impugned order dated 16.05.2026 passed in Crl.M.P.No.302 of 2026 by the learned trial Court to exercise the jurisdiction of this Court under Section 528 of the BNSS and the same is liable to be dismissed.

18. Accordingly, the criminal petition is dismissed.

Miscellaneous applications, pending if any, shall stand closed.