# Smt. Neelam & Anr v. State of U.P. & Ors

- **Citation:** (2026) 1 ILRA 126
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-01-12
- **Case number:** Application U/S 528. No. 49947 of 2025
- **Bench:** Vivek Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-neelam-anr-v-state-of-u-p-ors-54776
- **Pages:** 11

## Text

126 INDIAN LAW REPORTS ALLAHABAD SERIES
years of age. In the present case, the sexual intercourse is admitted by the applicant no.1 and the
age of victim is under 18 years, as is prima facie explicit from her matriculation certificate.

14. Even otherwise Section 69 BNS provides for sexual intercourse by employing deceitful
means and false promise of marriage as one of the deceitful means. In the case of Pramod
Suryabhan Pawar Vs. State of Maharashtra, (2019) 9 SCC 608, Hon'ble the Supreme Court has
drawn a clear distinction between false promise of marriage, which is given on understanding by
the maker that it will be broken and a breach of promise which is made in good faith but
subsequently not fulfilled. It is former which outrightly attracts penal provision.

15. So far as moving of an application under Section 175(3) BNSS by the mother of victim is
concerned. The court of Special Judge, POCSO Act, Kushinagar while disposing of the application
by order dated 01.04.2025 has converted it to a complaint and fixed 23.04.2025 for recording of
statement under Section 223 BNSS. The FIR was registered on 26.05.2025 and on 29.05.2025, the
mother of victim has not pressed the complaint, which was accordingly dismissed on the same day.
It is the order dated 01.04.2025, whereby the court refused to register the FIR, which was
challenged in revision before this Court registered as Criminal Revision No. 2685 of 2025. The
coordinate Bench of this Court by order dated 02.07.2025 has dismissed the revision being
infructuous. This shows that neither the special court nor the High Court have taken into
consideration the allegations made to summon the accused and therefore, the stage was precognizance stage. As such, Section 233 BNSS will not put any dent on the prosecution case
because the provision is about consolidation of the two cases with the aim to avoid conflicting
outcome of the two. Hence, the application moved under Section 528 BNSS is devoid of merit and
liable to be dismissed.

16. The Application under Section 528 BNSS is hereby dismissed.
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(2026) 1 ILRA 126
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.01.2026

BEFORE

THE HON'BLE VIVEK KUMAR SINGH, J.

Application U/S 528. No. 49947 of 2025

Smt. Neelam & Anr. ...Applicants
Versus
State of U.P. & Ors. ...Opposite Parties

Issue for consideration
Matter pertains to impugned order rejecting application to recall victim for further cross examination.

Headnotes
Bhartiya Nyaya Suraksha Sanhita, 2023-sec. 348-Application - to recall the victim/PW2/opposite party
no.3 for further cross examination- Section 33(5) - duty is cast upon the Special Court - to ensure that the
1 All. Smt. Neelam & Anr. Vs. State of U.P. & Ors.
127
child who has suffered a traumatic experience of sexual assault is not called time and again to testify about
the same incident- witnesses who has already been examined and cross-examined-cannot be recalled and reexamined to deny the evidence already given - no opportunity at a later stage can be given to him- to
completely efface the evidence already given by him under oath- preferred either to delay the trial or to winover the victim-who has already been examined and cross-examined at length-filed after six years-not a
Bonafide application-impugned order rightly rejected-Application rejected.(E-9)

Case Law Cited
1. Mohd. Khalid Versus State of West Bengal, (2002) 7 SCC 334; Hanuman Prasad (Supra)
2. Natasha Singh vs. CBI, (2013) 5 SCC 741:(2013) 4 SCC (Cri) 828:2013 SCC OnLine SC 444;
3. Rajaram Prasad Yadav vs. State of Bihar and another, AIR 2013 SC 3081;
4. State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402;
5. State of Haryana vs. Ram Mehar and others, (2016) 8 SCC 762;
6. Swapan Kumar Chatterjee vs. Central Bureau of Investigation, (2019) 14 SCC 328;
7. Varsha Garg vs. State of Madhya Pradesh and Others, 2022 SCC OnLine SC 986
8. Application under Section 482 Cr.P.C. No. 274 of 2022 (Ram Nayak Singh vs. State of U.P. & Another)
9. Ratanlal vs. Prahlad Jat, (2017) 9 SCC 340
10. Mishrilal and others vs.State of M. P. and others (2005) 10 SCC 701
11. Yakub Ismailbhai Patel vs.State of Gujarat-AIR 2004 SC 4209
12. Nisar Khan alias Guddu and others vs. State of Uttaranchal (2006) 9 SCC 386
13. Madhab Chandra Pradhan and Others vs. State of Odisha, reported in MANU/SC/1494/2024

List of Acts
1. POCSO Act
2. Bhartiya Nyaya Suraksha Sanhita, 2023
3. Indian Penal Code

List of Keywords
sexual assault; child; recalled and re-examined.

Appearances of parties
Counsel for Applicant(s) : Ajeet Kumar Srivastava, Arvind Kumar Srivastava, Neelam Srivastava, Satyendra
Kumar Srivastava Counsel for Opposite Party(s) : G.A.

(Delivered by Hon'ble Vivek Kumar Singh, J.)

1. Heard Shri Arvind Kumar Srivastava, the learned counsel for the applicants, Shri Akhilesh
Kumar Mishra, the learned counsel appearing for respondent no.2 and Shri Mohd. Afzal, the
learned counsel for the State and perused the record.

2. The present application has been filed by the applicants challenging the order dated
16.10.2025, passed by the Additional Sessions Judge/Special Judge (POCSO) Act, Sant Kabir
Nagar in S.S.T. No.0071 of 2018 (State of U.P. vs. Neelam), on an application preferred by the
accused applicants under Section 348 of BNSS praying herein to recall the victim/PW-2/opposite
party no.3 for further cross examination.

3. The brief facts of the case are to the effect that a first information report was lodged by the
informant/opposite party no.2 on 21.12.2017 in respect of incident dated 15.12.20217, bearing Case
crime no.1888 of 2017, under Section 363, 366, 120B IPC and Section 7/8 POCSO Act, Police
Station Bakhira, District Sant Kabir Nagar. The Investigating Officer after due investigation
128 INDIAN LAW REPORTS ALLAHABAD SERIES
submitted chargesheet in this case on 27.01.2018, under Section 363, 366, 120B IPC and Section
16/17 POCSO Act and once the statement of the victim was recorded under Sections 161 and 164
Cr.P.C. the trial court took cognizance of offence and during the course of trial charges were
framed. The accused pleaded not guilty and claimed to be tried.

4. The first informant was examined in the trial court as PW-1. Thereafter the victim was
examined as PW-2 on 26.04.2019 but due to paucity of time her cross-examination was continued
for 10.05.2019 and she was cross-examined at length. Thereafter the applicant Neelam moved an
application under Section 348 BNSS and objection was filed by the learned ADGC on 04.10.2025.
Both parties were heard by the learned trial court and passed the impugned order dated 16.10.2025
whereby the application filed by the applicant Neelam was dismissed.

5. In the aforesaid background of the case, the present application under section 528 BNSS has
been moved by the applicants-accused.

6. The learned counsel for the applicants submits that one more opportunity be granted to the
applicants for cross-examination of the victim and the learned Trial Court had committed gross
illegality in rejecting the application vide order dated 16.10.2025. The order impugned is against
the principle settled by the Hon'ble Apex Court. As such interference by this Court is required in
this matter.

7. The learned AGA as well as the learned counsel appearing for the opposite party no.2 have
vehemently opposed the application and submitted that the application under section 348 BNSS
was moved with the sole intention to delay the trial which is impermissible and in the
circumstances of the case, the application has rightly been rejected by the learned trial court. The
application for recalling of the witness has been moved after about six years and the delay has not
been properly explained by the applicants. The victim was examined on 10.05.2019 and the
application was moved in the year 2025. All the witness of facts have been examined in the trial
court and as per Section 33(5) of POCSO Act, 2012, the child witness would not be called
repeatedly to testify in the court.

8. I have considered the submissions advanced by the learned counsel for the parties and
perused the records as well as impugned order dated 16.10.2025 passed by the learned Trial Court
in the aforesaid case.

9. The principle related to recall of the witnesses under section 311 of Cr.P.C. (corresponding
Section-348 BNSS) has been settled by Hon'ble Apex Court in the case (s) of Mohd. Khalid
Versus State of West Bengal, (2002) 7 SCC 334; Hanuman Prasad (Supra), Natasha Singh vs.
CBI, (2013) 5 SCC 741:(2013) 4 SCC (Cri) 828:2013 SCC OnLine SC 444; Rajaram Prasad
Yadav vs. State of Bihar and another, AIR 2013 SC 3081; State (NCT of Delhi) v. Shiv
Kumar Yadav, (2016) 2 SCC 402; State of Haryana vs. Ram Mehar and others, (2016) 8 SCC
762; Swapan Kumar Chatterjee vs. Central Bureau of Investigation, (2019) 14 SCC 328;
Varsha Garg vs. State of Madhya Pradesh and Others, 2022 SCC OnLine SC 986 and also by
this Court in Application under Section 482 Cr.P.C. No. 274 of 2022 (Ram Nayak Singh vs.
State of U.P. & Another).
1 All. Smt. Neelam & Anr. Vs. State of U.P. & Ors.
129

10. It is well settled by catena of decisions by the Hon'ble Apex Court that the power under
Section 311 Cr.P.C. or Section 348 BNSS as the case may be, must be exercised with care, caution
and circumspection and only for strong and valid reasons. 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. The object of the provision as a whole is to do
justice not only from the point of view of the accused and the prosecution but also from the point of
view of an orderly society.

11. The Court is fully conscious of the position that after all the trial is basically for the
prisoners/accused and the Court should afford an opportunity to them in the fairest manner
possible. At the same time, the Court should bear in mind that fair trial entails the interest of the
accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the
persons concerned, must be ensured being a constitutional goal, as well as a human right. Recalling
of witnesses has to be applied on the basis of judicially established and accepted principles.

12. The above observations cannot be read as laying down any inflexible rule to routinely
permit a recall on the ground that earlier correct facts could not be brought on record. While
advancement of justice remains the prime object of law, it cannot be understood that recall can be
allowed for the asking or reasons related to mere convenience.

13. 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.

14. In the case of Mohd. Khalid vs. State of West Bengal reported in (2002) 7 SCC 334,
the Hon'ble Apex Court observed as under:-

"9. We make it abundantly clear that if a witness is present in Court he must be examined
on that day. The Court must know that most of the witnesses could attend the Court only at heavy
cost to them, after keeping aside their own avocation. Certainly they incur suffering and loss of
income. The meagre amount of bhatta (allowance) which a witness may be paid by the Court is
generally a poor solace for the financial loss incurred by him. It is a said plight in the Trial Courts
that witnesses who are called through summons or other processes stand at a doorstep from
morning till evening only to be told at the end of the day that the case is adjourned to another day.
This primitive practice must be reformed by every one provided the presiding officer concerned has
a commitment towards duty. No sadistic pleasure, in seeing how other persons summoned by him
as witnesses are standard on account of the dimension of his judicial powers, can be a persuading
factor for granting such adjournments lavishly, that too in a casual manner."

15. The relevant paragraphs of the judgment passed in the case of State (NCT of Delhi) vs.
Shiv Kumar Yadav reported in (2016) 2 SCC 402 are extracted hereunder:-

"10. It can hardly be gainsaid that fair trial is a part of guarantee under Article 21 of the
Constitution of India. Its content has primarily to be determined from the statutory provisions for
130 INDIAN LAW REPORTS ALLAHABAD SERIES
conduct of trial, though in some matters where statutory provisions may be silent, the court may
evolve a principle of law to meet a situation which has not been provided for. It is also true that
principle of fair trial has to be kept in mind for interpreting the statutory provisions.

11. It is further well settled that fairness of trial has to be seen not only from the point of
view of the accused, but also from the point of view of the victim and the society. In the name of fair
trial, the system cannot be held to ransom. The accused is entitled to be represented by a counsel of
his choice, to be provided all relevant documents, to cross-examine the prosecution witnesses and
to lead evidence in his defence. The object of provision for recall is to reserve the power with the
court to prevent any injustice in the conduct of the trial at any stage. The power available with the
court to prevent injustice has to be exercised only if the court, for valid reasons, feels that injustice
is caused to a party. Such a finding, with reasons, must be specifically recorded by the court before
the power is exercised. It is not possible to lay down precise situations when such power can be
exercised. The legislature in its wisdom has left the power undefined. Thus, the scope of the power
has to be considered from case to case. The guidance for the purpose is available in several
decisions relied upon by the parties. It will be sufficient to refer to only some of the decisions for
the principles laid down which are relevant for this case.

14. In Hoffman Andreas case [Hoffman Andreas v. Inspector of Customs, (2000) 10
SCC 430 : 2001 SCC (Cri) 1488] , the counsel who was conducting the case was ill and died
during the progress of the trial. The new counsel sought recall on the ground that the witnesses
could not be cross-examined on account of the illness of the counsel. This prayer was allowed in
peculiar circumstances with the observation that normally a closed trial could not be reopened but
illness and death of the counsel was in the facts and circumstances considered to be a valid ground
for recall of witnesses. It was observed: (SCC p. 432, para 6)

"6. Normally, at this late stage, we would be disinclined to open up a closed trial once
again. But we are persuaded to consider it in this case on account of the unfortunate development
that took place during trial i.e. the passing away of the defence counsel midway of the trial. The
counsel who was engaged for defending the appellant had cross-examined the witnesses but he
could not complete the trial because of his death. When the new counsel took up the matter he
would certainly be under the disadvantage that he could not ascertain from the erstwhile counsel
as to the scheme of the defence strategy which the predeceased advocate had in mind or as to why
he had not put further questions on certain aspects. In such circumstances, if the new counsel
thought to have the material witnesses further examined the Court could adopt latitude and a
liberal view in the interest of justice, particularly when the Court has unbridled powers in the
matter as enshrined in Section 311 of the Code. After all the trial is basically for the prisoners and
courts should afford the opportunity to them in the fairest manner possible."

15. The above observations cannot be read as laying down any inflexible rule to routinely
permit a recall on the ground that cross-examination was not proper for reasons attributable to a
counsel. While advancement of justice remains the prime object of law, it cannot be understood
that recall can be allowed for the asking or reasons related to mere convenience. It has normally to
be presumed that the counsel conducting a case is competent particularly when a counsel is
appointed by choice of a litigant. Taken to its logical end, the principle that a retrial must follow on
every change of a counsel, can have serious consequences on conduct of trials and the criminal
justice system. The witnesses cannot be expected to face the hardship of appearing in court
repeatedly, particularly in sensitive cases such as the present one. It can result in undue hardship
1 All. Smt. Neelam & Anr. Vs. State of U.P. & Ors.
131
for the victims, especially so, of heinous crimes, if they are required to repeatedly appear in court
to face cross-examination.

16. The interest of justice may suffer if the counsel conducting the trial is physically or
mentally unfit on account of any disability. The interest of the society is paramount and instead of
trials being conducted again on account of unfitness of the counsel, reform may appear to be
necessary so that such a situation does not arise. Perhaps time has come to review the Advocates
Act and the relevant rules to examine the continued fitness of an advocate to conduct a criminal
trial on account of advanced age or other mental or physical infirmity, to avoid grievance that an
Advocate who conducted trial was unfit or incompetent. This is an aspect which needs to be looked
into by the authorities concerned including the Law Commission and the Bar Council of India.

27. It is difficult to approve the view taken by the High Court. Undoubtedly, fair trial is
the objective and it is the duty of the court to ensure such fairness. Width of power under Section
311 CrPC is beyond any doubt. Not a single specific reason has been assigned by the High Court
as to how in the present case recall of as many as 13 witnesses was necessary as directed in the
impugned order. No fault has been found with the reasoning of the order of the trial court. The
High Court rejected on merits the only two reasons pressed before it that the trial was hurried and
the counsel was not competent. In the face of rejecting these grounds, without considering the
hardship to the witnesses, undue delay in the trial, and without any other cogent reason, allowing
recall merely on the observation that it is only the accused who will suffer by the delay as he was in
custody could, in the circumstances, be hardly accepted as valid or serving the ends of justice. It is
not only matter of delay but also of harassment for the witnesses to be recalled which could not be
justified on the ground that the accused was in custody and that he would only suffer by prolonging
of the proceedings. Certainly recall could be permitted if essential for the just decision but not on
such consideration as has been adopted in the present case. Mere observation that recall was
necessary for ensuring fair trial is not enough unless there are tangible reasons to show how the
fair trial suffered without recall. Recall is not a matter of course and the discretion given to the
court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the
party is even permitted to correct its bona fide error and may be entitled to further opportunity
even when such opportunity may be sought without any fault on the part of the opposite party, plea
for recall for advancing justice has to be bona fide and has to be balanced carefully with the other
relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in
the trial. Having regard to these considerations, we do not find any ground to justify the recall of
witnesses already examined.

28. It will also be pertinent to mention that power of judicial superintendence under
Article 227 of the Constitution and under Section 482 CrPC has to be exercised sparingly when
there is patent error or gross injustice in the view taken by a subordinate court [Jasbir Singh v.
State of Punjab, (2006) 8 SCC 294 : (2006) 3 SCC (Cri) 470, paras 10 to 14] . A finding to this
effect has to be supported by reasons. In the present case, the High Court has allowed the prayer of
the accused, even while finding no error in the view taken by the trial court, merely by saying that
exercise of power was required for granting fair and proper opportunity to the accused. No
reasons have been recorded in support of this observation. On the contrary, the view taken by the
trial court rejecting the stand of the accused has been affirmed. Thus, the conclusion appears to be
inconsistent with the reasons in the impugned order.

29. We may now sum up our reasons for disapproving the view of the High Court in the
present case:
132 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) The trial court and the High Court held that the accused had appointed counsel of his
choice. He was facing trial in other cases also. The earlier counsel were given due opportunity and
had duly conducted cross-examination. They were under no handicap;

(ii) No finding could be recorded that the counsel appointed by the accused were
incompetent particularly at the back of such counsel;

(iii) Expeditious trial in a heinous offence as is alleged in the present case is in the
interests of justice;

(iv) The trial court as well as the High Court rejected the reasons for recall of the
witnesses;

(v) The Court has to keep in mind not only the need for giving fair opportunity to the
accused but also the need for ensuring that the victim of the crime is not unduly harassed;

(vi) Mere fact that the accused was in custody and that he will suffer by the delay could
be no consideration for allowing recall of witnesses, particularly at the fag end of the trial;

(vii) Mere change of counsel cannot be ground to recall the witnesses;

(viii) There is no basis for holding that any prejudice will be caused to the accused unless
the witnesses are recalled;

(ix) The High Court has not rejected the reasons given by the trial court nor given any
justification for permitting recall of the witnesses except for making general observations that
recall was necessary for ensuring fair trial. This observation is contrary to the reasoning of the
High Court in dealing with the grounds for recall i.e. denial of fair opportunity on account of
incompetence of earlier counsel or on account of expeditious proceedings;

(x) There is neither any patent error in the approach adopted by the trial court rejecting
the prayer for recall nor any clear injustice if such prayer is not granted."

16. In the case of Swapan Kumar Chatterjee (Supra), a note of caution was sounded and the
same can be deduced from paragraphs 11 and 12 of the report, which are as under:-

"11. It is well settled that the power conferred under Section 311 should be invoked by
the court only to meet the ends of justice. The power is to be exercised only for strong and valid
reasons and it should be exercised with great caution and circumspection. The court has vide
power under this section to even recall witnesses for re-examination or further examination,
necessary in the interest of justice, but the same has to be exercised after taking into consideration
the facts and circumstances of each case. The power under this provision shall not be exercised if
the court is of the view that the application has been filed as an abuse of the process of law.

12. Where the prosecution evidence has been closed long back and the reasons for nonexamination of the witness earlier are not satisfactory, the summoning of the witness at belated
stage would cause great prejudice to the accused and should not be allowed. Similarly, the court
should not encourage the filing of successive applications for recall of a witness under this
provision."

17. The power to summon material witnesses under Section 348 BNSS. which falls under
Chapter XXVI containing the general provisions as to inquiries and trials has been held to confer a
very wide power on the courts for summoning witnesses and accordingly the discretion conferred is
to be exercised judiciously as wider the power the greater is the necessity for the application of
judicial mind.
1 All. Smt. Neelam & Anr. Vs. State of U.P. & Ors.
133

18. The power conferred has been held to be discretionary and is to enable the court to
determine the truth after discovering all relevant facts and obtaining proper proof thereof to arrive
at a just decision in the case. The power conferred under Section 348 BNSS is to be invoked by the
court to meet the ends of justice, for strong and valid reasons and it is to be exercised with great
caution and circumspection. The determinative factor in this regard would be whether the
summoning or recalling of the witness is in fact, essential to the just decision of the case keeping in
view that fair trial - which entails the interests of the accused, the victim and of the society - is the
main object of the criminal procedure and the court is to ensure that such fairness is not hampered
or threatened in any manner.

19. In State (NCT of Delhi) vs. Shiv Kumar Yadav: (2016) 2 SCC 402, it has been held
that: -

"Certainly, recall could be permitted if essential for the just decision, but not on such
consideration as has been adopted in the present case. Mere observation that recall was necessary
"for ensuring fair trial" is not enough unless there are tangible reasons to show how the fair trial
suffered without recall. Recall is not a matter of course and the discretion given to the court has to
be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even
permitted to correct its bona fide error and may be entitled to further opportunity even when such
opportunity may be sought without any fault on the part of the opposite party, plea for recall for
advancing justice has to be bona fide and has to be balanced carefully with the other relevant
considerations including un-called for hardship to the witnesses and un-called for delay in the
trial. Having regard to these considerations, there is no ground to justify the recall of witnesses
already examined."

20. In Ratanlal vs. Prahlad Jat, (2017) 9 SCC 340, it was held that: -

"17. In order to enable the court to find out the truth and render a just decision, the
salutary provisions of Section 311 are enacted whereunder any court by exercising its
discretionary authority at any stage of inquiry, trial or other proceeding can summon any person
as witness or examine any person in attendance though not summoned as a witness or recall or reexamine any person already examined who are expected to be able to throw light upon the matter
in dispute. The object of the provision as a whole is to do justice not only from the point of view of
the accused and the prosecution but also from the point of view of an orderly society. This power is
to be exercised only for strong and valid reasons and it should be exercised with caution and
circumspection. Recall is not a matter of course and the discretion given to the court has to be
exercised judicially to prevent failure of justice. Therefore, the reasons for exercising this power
should be spelt out in the order."

21. In the case of Mishrilal and others vs.State of M. P. and others (2005) 10 SCC 701
while dealing with the case having more or less similar facts the Hon'ble Apex Court observed as
under:-

"In our opinion, the procedure adopted by the Sessions Judge was not strictly in
accordance with law. Once the witness was examined in-chief and cross- examined fully, such
134 INDIAN LAW REPORTS ALLAHABAD SERIES
witness should not have been recalled and re-examined to deny the evidence he had already given
before the court, even though that witness had given an inconsistent statement before any other
court or forum subsequently. A witness could be confronted only with a previous statement made by
him. At the time of examination of PW 2 Mokam Singh on 6.2.1991, there was no such previous
statement and the defence counsel did not confront him with any statement alleged to have been
made previously. This witness must have given some other version before the Juvenile Court for
extraneous reasons and he should not have been given a further opportunity at a later stage to
completely efface the evidence already given by him under oath. The courts have to follow the
procedures strictly and cannot allow a witness to escape the legal action for giving false evidence
before the court on mere explanation that he had given it under the pressure of the police or some
other reason. Whenever the witness speaks falsehood in the court, and it is proved satisfactorily,
the court should take a serious action against such witnesses."

22. In the case of Yakub Ismailbhai Patel vs.State of Gujarat-AIR 2004 SC 4209, in para
40 and 41 the Hon'ble Supreme Court observed as under :-

"40. Significantly this witness, later on filed an affidavit wherein he had sworn to the fact
that whatever he had deposed before Court as PW-1 was not true and it was so done at the
instance of Police.

41. The averments in the affidavits are rightly rejected by the High Court and also the
Sessions Court. Once the witness is examined as a prosecution witness, he cannot be allowed to
perjure himself by resiling from testimony given in Court on oath. It is pertinent to note that during
the intervening period between giving of evidence as PW-1 and filing of affidavit in Court later he
was in jail in a narcotic case and that the accused persons were also fellow inmates there"

23. In the case of Nisar Khan alias Guddu and others vs. State of Uttaranchal (2006) 9
SCC 386 where an application was filed on behalf of the accused under Section 311 of the Cr.P.C.
and witness was recalled. With regard to this fact the Honble Apex Court observed as under:

"We are of the view that no reasonable person properly instructed in law would allow an
application filed by the accused to recall the eyewitnesses after a lapse of more than one year that
too after the witnesses were examined, cross-examined and discharged."

24. 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. Section 33 of the POCSO Act provides
for the procedure and powers of the Special Court and reads as under:

"33. Procedure and powers of Special Court. - (1) A Special Court may take cognizance
of any offence, without the Accused being committed to it for trial, upon receiving a complaint of
facts which constitute such offence, or upon a police report of such facts.

(2) The Special Public Prosecutor, or as the case may be, the counsel appearing for the
Accused shall, while recording the examination-in-chief, cross-examination or re-examination of
the child, communicate the questions to be put to the child to the Special Court which shall in turn
put those questions to the child.
1 All. Smt. Neelam & Anr. Vs. State of U.P. & Ors.
135

(3) The Special Court may, if it considers necessary, permit frequent breaks for the child
during the trial.

(4) The Special Court shall create a child-friendly atmosphere by allowing a family
member, a guardian, a friend or a relative, in whom the child has trust or confidence, to be present
in the court.

(5) The Special Court shall ensure that the child is not called repeatedly to testify in the
court.

(6) The Special Court shall not permit aggressive questioning or character assassination
of the child and ensure that dignity of the child is maintained at all times during the trial.

(7) The Special Court shall ensure that the identity of the child is not disclosed at any
time during the course of investigation or trial..."

25. A bare perusal of Section 33(5) of the Act indicates that a duty is cast upon the Special
Court to ensure that a child is not repeatedly called to give his/her testimony before the court. The
legislative intent behind this provision is clear. It is to ensure that the child who has suffered a
traumatic experience of sexual assault is not called time and again to testify about the same
incident.

26. The Hon'ble Supreme Court in a recent judgment in the case of Madhab Chandra
Pradhan and Others vs. State of Odisha, reported in MANU/SC/1494/2024 has held that a child
witness, who has already been examined and cross-examined at length, cannot be recalled to testify
again in the Court. Such an application cannot be allowed mechanically, especially in trial of
offences under the POCSO Act. The facts of the present case are similar to the facts of the case of
Madhab Chandra Pradhan (supra) case. Therefore, the application moved under Section 348
BNSS can not be allowed in view of the aforesaid judgment.

27. From perusal of the above case laws, it is apparent that a witnesses who has already been
examined and cross-examined, cannot be recalled and re-examined to deny the evidence he has
already given before the trial court and no opportunity at a later stage can be given to him to
completely efface the evidence already given by him under oath.

28. Upon consideration of the aforesaid facts and also the settled law on the issue this Court
does not find any illegality in the order impugned dated 16.10.2025. It is for the reason that in view
of this Court the application under Section 348 BNSS was preferred by the applicants either to
delay the trial or to win-over the victim, who has already been examined and cross-examined at
length. The application under Section 348 BNSS was not a bonafide application and the same was
filed after six years from the date of cross-examination of the victim. Therefore, the recall
application was rightly rejected by the learned Trial Court vide order dated 16.10.2025. The learned
Trial Court did not commit any illegality or irregularity in rejecting the application of the applicant.

29. The application under Section 528 BNSS lacks merit and is accordingly rejected.

30. No order as to cost.
136 INDIAN LAW REPORTS ALLAHABAD SERIES

31. The Registrar (Compliance) is directed to communicate this order to the Trial Court by the
fastest mode through District Judge concerned.
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(2026) 1 ILRA 136
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.01.2026

BEFORE

THE HON'BLE PRAVEEN KUMAR GIRI, J.

Application U/S 528. No. 51192 of 2025

Mahendra Singh & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Issue for consideration
Opportunity of hearing u/s 223-first proviso BNSS.

Headnotes
Bhartiya Nyaya Suraksha Sanhita, 2023- Section 223- Summoning order- provision of
Section 223 first proviso of BNSS has been violated -opportunity of hearing has not been
provided to the accused- BNSS has come into force on 1 July 2024-if the alleged offence
took place prior to the date of its enforcement-procedure that is more beneficial to the
accused must be adopted-impugned order set aside-matter remitted. Application
disposed. (E-9)

Case Law Cited
Deepu and Ors. v State of U.P. and Ors., (2024) 8 ILRA 903 (Crl. Misc. Writ Petition No.12287 of 2024)

List of Acts
Bhartiya Nyaya Suraksha Sanhita, 2023

List of Keywords
Opportunity of hearing;section 223 first proviso of BNSS.

Appearances of parties
Counsel for Applicant(s) : Hukum Singh, Puneet Bhadauria Counsel for Opposite Party(s) : G.A.

(Delivered by Hon'ble Praveen Kumar Giri, J.)

1. Heard Sri Puneet Bhadauria along with Hukum Singh, learned counsel for the applicants,
Sri Ajay Dubey, learned counsel for opposite party No.2 and Sri Pankaj Kumar Tripathi, learned
A.G.A. for the State.

2. Earlier, in the present application, this Court has passed an order dated 05.01.2026,
paragraph Nos. 1 to 11 of the same are delineated below for ready reference: