[Cites 4, Cited by 0]
Orissa High Court
Khirabandhu Gouda vs State Of Odisha & Anr. .... Opposite ... on 20 March, 2026
Author: Sanjeeb K Panigrahi
Bench: Sanjeeb K Panigrahi
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.5046 of 2025
Khirabandhu Gouda .... Petitioner(s)
Ms. Subhasmita Samant,
Advocate
-Versus-
State of Odisha & Anr. .... Opposite Party (s)
Ms. Gayatri Patra, ASC
Mr. Sritam Kumar Nayak, Adv.
(for O.P. No.2)
CORAM:
DR. JUSTICE SANJEEB K PANIGRAHI
ORDER
20.03.2026
Order No.
03.
1. This matter is taken up through hybrid arrangement.
2. Heard learned counsel for the respective parties.
3. The Petitioner has filed the present petition assailing the legality
and impropriety of the order dated 04.08.2025 passed by the
learned Addl. Sessions Judge-cum-Special Court under POCSO
Act, Nabarangpur in T.R. Case No.29 of 2025, arising out of
Khatiguda P.S. Case No.52 of 2025, whereby the petition filed
Designation: Senior Stenographer
under Section 348 of the B.N.S.S., seeking recall of the victim
Location: HIGH COURT OF
ORISSA, CUTTACK
Date: 23-Mar-2026 18:38:15
(P.W.3) for limited and further cross-examination, was rejected.
4. Learned counsel for the Petitioner submits that during the course
of trial, the prosecution examined the victim as P.W.3 on
19.07.2025. However, during her cross-examination, certain
relevant and essential questions relating to her prior
acquaintance with the Petitioner, which are crucial for the just
adjudication of the case, could not be put due to inadvertence
and oversight on the part of the learned defence counsel.
Accordingly, on 02.08.2025, a petition under Section 348 of the
B.N.S.S. was filed seeking recall of P.W.3 for the limited purpose
of putting specific questions as details in the accompanying
questionnaire.
5. Learned counsel for the Petitioner further contends that the
learned trial Court, after hearing the parties, rejected the petition
vide order dated 04.08.2025 in a mechanical manner, without
properly appreciating the necessity of the proposed questions,
thereby compelling the Petitioner to approach this Court.
6. Learned counsel for the Petitioner further contends that, in the
meantime, the matter has been amicably settled between the
parties outside the Court and in that backdrop, further cross-
examination of the victim (P.W.3) has become necessary.
7. Learned counsel for the Petitioner further contends that the
learned trial Court has failed to consider the materials on record
in their proper legal perspective and overlooked the fact that the
recall was sought only for limited and specific questions, which
are essential for a fair adjudication of the case. The impugned
order, therefore, is unsustainable in law and requires interference
by this Court.
8. Learned counsel for the Petitioner further contends that although
the learned trial learned trial Court referred to certain judicial
pronouncements and Section 33(5) of the POCSO Act, it failed to
appreciate that the omission to put the relevant questions to
P.W.3 during cross-examination was neither deliberate nor
intended to protract the trial, but was due to bona fine
inadvertence.
9. Learned counsel for the Petitioner further contends that the
proposed questions intended to be put to P.W.3 are clear, specific
and directly relevant to the issues involved in the case. The
rejection of the petition on the ground that recall of the victim
would defeat the object of the statue and cause harassment is
legally untenable, particularly when the recall is sought only
once and for limited purpose. Thus, the impugned rejection order
deserves to be quashed.
10. Learned counsel for the Petitioner further contends that the
petition filed to recall P.W.3 is highly essential for establishing
the innocence of the Petitioner and for enabling the Court to
arrive at a just and proper conclusion. Denial of such opportunity
would result in serious prejudice and irreparable loss to the
defence.
11. Per contra, learned counsel for the State vehemently opposes the
prayer of the Petitioner and submits that the witness has already
been examined and cross-examined by the learned defence
counsel. It is further submitted that the present petition has been
filed only to linger the proceedings. On the strength of such
submissions, it is prayed that the petition be rejected.
12. Learned counsel appearing on behalf of Opposite Party No.2,
however, does not oppose the submissions advanced on behalf of
the Petitioner.
13. The learned Addl. Sessions Judge-cum-Special Court under
POCSO Act, Nabarangpur, after hearing both sides and perusing
the case record, observed that the victim had already been
examined and cross-examined at length and discharged. It was
further noted that the Petitioner failed to place sufficient
materials on record for its subjective satisfaction that the petition
is bona fide and genuine and such recall of the victim (P.W.3) is
essential for the just decision of the case, as such allowing an
application for recall of the victim, would defeat the very
purpose of the statute and would be harassment for the victim.
Accordingly, the petition was rejected.
14. At the outset, it is well settled that the power under Section 348 of
the B.N.S.S. is to be exercised sparingly and with circumspection,
to advance the cause of justice and not to enable a party to fill up
lacuna in its case.
15. It is equally well settled that in cases under the POCSO Act, a
prayer for recall of the victim must be considered with caution,
keeping in view the need for expeditious trial and to avoid
unnecessary harassment to the victim. In this regard, the
Supreme Court in Arjun Sonar v. State of Arunachal Pradesh1,
while rejecting a plea seeking recall of the victim for cross-
examination in a case under the POCSO Act, has observed as
follows:
"7. Courts must be vigilant not to allow procedural
submissions to evolve into tactics for harassment. A
request to recall a child victim after conclusion of trial
and concurrent findings of guilt, raises serious concern.
In the absence of any manifest illegality or perversity in
the appreciation of evidence, no case for interference
under Article 136 of the Constitution of India would be
warranted.
8. Our judicial conscious also does not permit casual
indulgence in a prayer for the appeal being entertained
where the conviction has been rendered after full fledged
trial, affirmed in appeal and the testimony of the victim is
clear, cogent, and duly collaborated. This Court has
repeatedly held that in serious offence under the POCSO
2025 SCC OnLine SC 2065.
Act, particularly those involving familial betrayal of
trust, relief cannot be granted as a matter of routine
when two courts have concurrently found guilt and the
findings are not shown to be perverse interference under
Article 136 of the Constitution of India is neither
warranted nor justified.
9. The legal process cannot become a means to perpetuate
injustice under the guise of a procedural lacunas. In
matters involving sexual violence against children, the
paramount consideration is not the convenience of the
accused but the integrity of the victim's testimony, the
finality of lawful findings, and the need to prevent
secondary victimization. Once the trial has concluded
and the testimony has been recorded, in accordance with
law, any attempt to recall the victim for re-examination,
must be treated with extreme caution. In the absence of
compelling legal necessity, it cannot be allowed. Such
attempts must be discouraged, wherever necessary it
should be nipped at the bud especially when they threaten
to re-traumatize the victim.
10. Courts have a duty to ensure that survivors of child
abuse are not re-traumatized by the very justice system
they turn for protection. Allowing such technical plea
being raised in cases of such gravity, especially when
guilt has been established after full fledged trial and
confirmed in appeal, risks undermining public confidence
in the administration of justice. It sends the wrong
message/signal that procedural tactics override
substantive findings. That cannot be permitted."
16. Having regard to the aforesaid settled position of law, the Court
is required to balance the competing considerations of ensuring a
fail trial to the accused and protecting the victim from
unnecessary harassment.
17. However, upon consideration of the submissions and on perusal
of the record, it appears that the present petition seeks recall of
P.W.3 only for limited questions which, according to the
Petitioner, could not be put earlier due to inadvertence. While
such omission cannot be lightly accepted, it is also to be seen
whether the proposed questions are necessary for a just
adjudication of the case. It is not in dispute that this is the first
such application and that the trial is still in progress.
18. In the facts of circumstances of the present case, since the prayer
is confined to limited questions, this Court is of the view that a
restricted opportunity may be granted, subject to appropriate
safeguards to ensure that the victim is not subjected to undue
harassment.
19. Accordingly, the impugned order dated 04.08.2025 passed by the
learned Additional Sessions Judge-cum-Special Court under
POCSO Act, Nabarangpur in T.R. Case No.29 of 2025 is set aside.
The learned Additional Sessions Judge-cum-Special Court under
POCSO Act, Nabarangpur is directed to reconsider the petition
for recall of P.W.3 and permit limited further cross-examination
strictly with respect to the relevancy and admissibility of such
questions.
20. The learned Additional Sessions Judge-cum-Special Court under
POCSO Act, Nabarangpur shall ensure that such cross-
examination be conducted on a single date, without granting
unnecessary adjournments and in a manner that ensures the
dignity and protection of the victim.
21. The CRLMC is, accordingly, disposed of.
22. Pending application (s), if any, shall stand disposed of.
23. Interim order, if any, passed earlier stand vacated.
24. Issue urgent certified copy of this order as per Rules.
(Dr. Sanjeeb K Panigrahi)
Judge
Sipun
