-1- 2025:CGHC:43789 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 2557 of 2025 Virendra Paikara S/o Shankar Paikara Aged About 27 Years R/o Village Manoharpur, Bichapara, Police Station Shankargarh District- Balrampur-Ramanujganj, C.G. ... Petitioner(s) versus 1 - State Of Chhattisgarh Through Police Station Shankargarh District- Balrampur-Ramanujganj, C.G. 2 - X Y Z ... Respondent(s) For Petitioner : Mr. Rohitashva Singh, Advocate For State : Mr. Pranjal Shukla, Panel Lawyer S.B.: Hon'ble Shri Parth Prateem Sahu, Judge Order On Board 28/08/2025 1. This petition is filed by the petitioner challenging order dated 14.07.2025 passed by learned Additional Sessions Judge, FTSC (POCSO Act), District Balrampur-Ramanujganj (CG), whereby, Digitally signed by PRAVEEN KUMAR SINHA Date: 2025.09.01 10:31:20 +0530 -2- application filed by petitioner under Section 348 of BNSS for recalling of Investigating Officer (PW7) for his re-examination came to be dismissed. 2. Learned counsel for petitioner would submit that during course of investigation, Investigating Officer (PW7) has prepared one spot map showing place of incidence of rape at one place as mentioned in spot map, however, allegation of victim in FIR as also her statement recorded under Section 180 of BNSS is that petitioner established sexual intercourse with her/committed rape on her since last about 13 years. FIR was lodged on 13.01.2022 and on the said date victim was major. He fairly submits that Investigating Officer was cross-examined by counsel representing the petitioner/accused, however, specific question could not be posed to said witness with respect to preparation of spot map and, therefore, re-examining/recalling of Investigating Officer (PW7) is necessary. 3. Learned counsel for the State opposes submission of learned counsel for petitioner and would submit that Investigating Officer was examined on 15.03.2024. Sufficient opportunity was granted to petitioner for cross-examining this witness. It is not the case of petitioner that for one or other reason, Investigating Officer could not be cross-examined. No specific ground has been pleaded and therefore, there is no merit in this petition. 4. I have heard learned counsel for the parties and also perused -3- the documents annexed along with this petition. 5. Perusal of pleadings made in this petition would show that main thrust of counsel for petitioner is that no specific question was posed to Investigating Officer (PW7) about place of crime when as per allegation offence was committed since 2008 for last about 17 years, whereas, FIR was lodged in the year 2021 and, therefore, application is filed seeking re-examination of PW7. Copy of order passed by learned Additional Sessions Judge FTSC (POCSO Act) is filed as Annexure P-3 dated 14.07.2025. Learned trial Court has noted that Investigating Officer Hemant Kumar Agrawal was examined and cross-examined as PW7 on 15.03.2024, counsel for accused/petitioner was given sufficient opportunity to cross -examine the said witness. After about more than one year from the date of examination/cross-examination of witness, this application is filed only to cause delay in disposal of case. 6. Learned trial Court has further observed that case is pending since 2022, and at the stage of examination of defence witness application is filed. Relying upon the decision of Hon’ble Supreme Court in case of State (NCT of Delhi) Vs. Shiv Kumar Yadav and Anr. (2016) 2 SCC 402, has dismissed the application. 7. It is not in dispute that offence registered against the petitioner is under Section 376 (2) (n) of IPC and Sections 4 and 6 of the -4- Protection of Children from Sexual Offences Act, 2012. Witness who was sought to be re-examined/re-called, Hemant Kumar Agrawal, Investigating Officer (PW7) was examined on 15.03.2024. This witness was cross-examined extensively by the counsel engaged by petitioner before trial Court. It is not the case that witness who is sought to be re-called could not be cross-examined by counsel for accused by one or the other reason. 8. Hon’ble Supreme Court in case of Shiv Kumar Yadav (supra) while dealing with the issue of re-calling of witness for its re- examination has observed thus: 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 -5- 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. x x x x x x 15. ………... 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. …………………... 27. …………... 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 -6- 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.” 9. It is no doubt that under provision of Section 348 of BNSS, Court to find out the truth and render just decision by exercising its discretionary authority at any stage of an inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined if his evidence appears to be essential to do just decision of case. The object of the provisions as a whole is to do justice not only from the point of view of the victim but also the society. This power is to be exercised only for strong and valid reason and it should be exercised cautiously and judiciously. 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. 10.As discussed above, from the pleadings in the application and -7- this criminal miscellaneous petition, it is apparent that witness PW7 was cross-examined. Case is pending since 2022 and further Investigating Officer PW7 was examined about more than one year ago from date of filing of application under Section 348 of BNSS which was preferred at the stage of examination of defence witness. Even otherwise, questions proposed to be posed is on spot map. Though power under Section 348 of BNSS is much wide, to be exercised for advancement of justice, however, it could not be understood that re-call can be allowed on mere asking or reason related to mere convenience . 11.For the foregoing discussions and considering entirety of facts of case, I do not find any good ground to interfere with the impugned order passed by learned Additional Sessions Judge FTSC (POCSO Act), District Balrampur-Ramanujganj. Hence, Criminal Miscellaneous Petition filed is sans merit. It is liable to be and is hereby dismissed. Sd/- (Parth Prateem Sahu) Judge Praveen