Case Note & Summary
The High Court of Bombay at Goa heard a criminal writ petition challenging the trial court's order that dismissed an application to recall witnesses for further cross-examination. The petitioner was undergoing trial for offences under the Indian Penal Code, Goa Children's Act, and POCSO Act, involving allegations of sexual abuse against his minor daughter. The petitioner sought recall of the victim, her mother, and sister, claiming that previous cross-examination by his earlier advocate was perfunctory and failed to confront witnesses with material contradictions. The petitioner argued this caused irreparable prejudice and miscarriage of justice, citing Supreme Court precedents on the right to effective defence and rectification of advocate errors. The State and the victim's counsel opposed the petition, emphasizing the protective mandates of the POCSO Act and Goa Children's Act, arguing that recalling the child victim would cause psychological trauma and defeat legislative intent. They also contended the application was vague, delayed, and a tactical move. The court analyzed the principles governing Section 348 of BNSS (equivalent to Section 311 CrPC), referencing Supreme Court guidelines that require judicial discretion focused on whether additional evidence is essential for a just decision. The court found the petitioner's grounds insufficient, as no specific material facts or omissions were detailed, and the application appeared aimed at improving cross-examination rather than addressing genuine gaps. Considering the child victim's trauma and the legislative protection afforded, the court upheld the trial court's order, dismissing the petition and affirming that recall would not serve the ends of justice.
Headnote
A) Criminal Procedure - Recall of Witnesses - Judicial Discretion Under Section 348 BNSS (Section 311 CrPC) - Bharatiya Nagarik Suraksha Sanhita, 2023, Section 348 - The petitioner sought recall of witnesses alleging perfunctory cross-examination by previous advocate - Court held that power under Section 348 is wide but must be exercised judicially, considering whether evidence is essential for just decision - Guided by Supreme Court principles from Rajaram Prasad Yadav case - Held that mere change of advocate or desire to improve cross-examination does not justify recall (Paras 9-10, 13-14). B) Criminal Law - Child Sexual Abuse Cases - Protection of Child Victims Under POCSO Act - Prevention of Children from Sexual Offences Act, 2012, Section 6 - The petitioner sought recall of minor victim daughter for further cross-examination - Court considered protective framework of POCSO Act and Goa Children's Act - Held that subjecting child victim to repeated examination causes psychological trauma and defeats legislative intent - Balancing accused's rights with child's welfare, recall was not justified (Paras 6, 12, 15). C) Criminal Procedure - Fair Trial - Accused's Right to Effective Defence - Bharatiya Nagarik Suraksha Sanhita, 2023, Section 348 - Petitioner claimed ineffective cross-examination by previous advocate prejudiced defence - Court examined whether application was bona fide or merely to fill lacunae - Found no specific material facts or contradictions omitted were identified - Held that vague allegations without particulars do not establish necessity for recall to ensure fair trial (Paras 5, 7, 13-14). D) Criminal Procedure - Recall Applications - Delay and Tactical Considerations - Bharatiya Nagarik Suraksha Sanhita, 2023, Section 348 - Application filed after considerable delay following completion of cross-examination - Court noted petitioner's change from private advocate to legal aid and back to private advocate - Held that delay and pattern of engagement suggested application might be delaying tactic rather than genuine need for justice - Supported trial court's rejection (Paras 4, 6, 14).
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Issue of Consideration: Whether the trial court erred in dismissing the petitioner's application under Section 348 of BNSS (Section 311 of Criminal Procedure Code) to recall witnesses for further cross-examination in a case involving sexual offences against a minor child
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Final Decision
The High Court dismissed the criminal writ petition, upheld the trial court's impugned order dated 17 December 2025, and ruled that the petitioner's application to recall witnesses was rightly rejected
