The Allahabad High Court, while dismissing the application filed under provision of BNSS (Section 528) by the accused seeking to recall the victim for re-cross-examination in a case under the POCSO Act, categorically held that summoning a child victim again after her cross-examination has already been conducted in a pending trial is not only contrary to the legislative intent but would also cause unnecessary delay in the proceedings and subject the victim to mental harassment.
The said order was passed by the Single Bench of Justice Vivek Kumar Singh while affirming the order dated 16 October 2025 passed by the Additional Sessions Judge/Special Judge (POCSO) Act, Sant Kabir Nagar. The Court observed that the application filed by the accused to recall the witness after a lapse of six years was not justified and appeared to be aimed solely at prolonging the trial.
The Court ruled that, “……………The recall of a witness already examined should not be a matter of course and the discretion, given to the court in this regard has to be exercised judicially to prevent failure of justice………..”
As per the facts of the case, an FIR was lodged in the year 2017 under the charges of kidnapping and POCSO Act . After completion of the investigation, a charge sheet was filed, and during the course of trial, the victim was examined as a prosecution witness in 2019 and was subjected to detailed cross-examination.
Despite this, in the year 2025, the accused moved an application under Section 348 of the BNSS (Section 311 of IPC) seeking to recall the victim for further examination, which was rejected by the trial court.
While considering the facts of the case, the High Court held that the power to recall a witness is an exceptional one and must be exercised only for strong and compelling reasons in the interest of justice. Section 33(5) of the POCSO Act expressly mandates that in sensitive cases, a child victim should not be repeatedly summoned to depose. A mere invocation of the general principle of “fair trial” cannot justify recalling a witness.
Regarding the gravity of an offence, the Bench clarified that,
” It is important to state here that POCSO Act is a special legislation, which was enacted to protect children from sexual offences and for safeguarding interests and ensuring the well-being of the child at every stage of trial of offences under the Act…………..”
The Court further found that,
“The jurisdiction under Section 528 BNSS is extraordinary and it can be used only in such cases where there is gross injustice or clear abuse of process of law. It can not be used to help such a person who is not cooperating in fair trial. Such power cannot be invoked to harass the witness who has already been examined or for causing delay in the trial.”
The Court emphasized that the application filed after six years was clearly intended to delay the trial or exert pressure on the victim. Relying upon several important judgments of the Supreme Court, the Court observed that recalling witnesses who have already been cross-examined is not part of the normal procedure, particularly in sensitive cases under the POCSO Act.
Thus, the Court found no illegality or insensitivity in the impugned order passed by the trial court, and dismissed the application filed by the accused persons.
Case: Smt. Neelam And Another vs State Of U.P. And 3 Others
Date of Order: 12.01.2026
See Order: Smt. Neelam And Another vs State Of U.P. And 3 Others
