1 2026:CGHC:7601 HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 372 of 2026 Suraj Mishra S/o Jaikumar Mishra Aged About 28 Years R/o Village- Haripur Mal Tol, Police Station - Talwai District- Madhubani (Bihar) Present Address- New Ashok Nagar, Dallpura Delhi, Police Station New Ashok Nagar Delhi ... Petitioner versus State of Chhattisgarh Through Station House Officer, Police Station, Kabir Nagar, District- Raipur (C.G.) ... Respondent For the petitioner : Ms. Divya Sahu, Advocate For the State : Mr. Sumit Singh, Deputy Advocate General Hon'ble Shri Justice Sanjay Kumar Jaiswal Order on Board 13/02/ 2026 1. The instant petition has been filed under Section 528 of BNSS, 2023 against the order dated 09.12.2025 passed by the learned IV Additional Sessions Judge F.T.S.C. (POCSO), Raipur, District Raipur (C.G.) in Criminal (POCSO) Case No. 36/2025, whereby the application under Section 311 of Cr.P.C./348 of BNSS filed by the petitioner has been rejected. 2. Briefly, the facts of the case are that pursuant to the report ALLENA ANNAJEE RAO Digitally signed by ALLENA ANNAJEE RAO Date: 2026.02.18 10:09:39 +0530 2 lodged by the victim against the petitioner, the FIR bearing Crime No.11/2025 was registered by P.S. Kabir Nagar, District Raipur for the offences u/s 65 of the BNS, 2023 andSections 4 & 6 of the Protection of Children from Sexual Offences Act, 2012. After completion of investigation, the charge sheet was filed and presently the case is pending. for trial. In this case, on 25.06.2025, the victim (PW-2) and her mother (PW-1) have been examined before the trial Court, and the defence counsel has afforded sufficient opportunities to cross-examine them. Thereafter, the petitioner filed the application on 05.12.2025 u/s 348 of BNSS for re-cross-examination of these witnesses, which was rejected by the trial Court. Hence the petition. 3. Learned counsel appearing for the Petitioner submits that the cross examination of victim and her mother has been done by the earlier counsel in whose cross examination some important questions have been omitted and the accused should not be punished by the mistake committed by the previous advocate. He further submits that the application filed by the petitioner is genuine and the trial Court committed grave illegality in rejecting the application. Hence, the impugned order dated 09.12.2025 is liable to be quashed, and the trial Court may be directed to give an opportunity for re-cross-examination of the these witnesses. 4. Learned State counsel submits that a perusal of the record clearly shows that the court statements of total 9 prosecution witnesses have been recorded; cross examination of victim (PW- 2) and her mother (PW-1) was already complete and the defence 3 counsel has already afforded sufficient opportunities to cross- examine the said witnesses. The case is currently at the stage of the accused's statement, and this application appears to be filed by the defence to deliberately delay the trial; therefore, the petition is liable to be dismissed. 5. I have heard learned Counsel appearing for the parties and perused the documents annexed with the petition including the order impugned. 6. Section 348 of BNSS, 2023 states as under :- 348. Power to summon material witness, or examine person present.- Any Court may, at any stage of any inquiry, trial or other proceeding under this Sanhita, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or re-call and re-examine any person already examined; and the Court shall summon and examine or re-call and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. 7. Section 33(5) of The Protection of Children from Sexual Offences Act, 2012 states as under:- 33. Procedure and powers of Special court.- (5) The special Court shall ensure that the child is not called repeatedly to testify in the Court. 8. In this context, the following opinion has been expressed by the Hon'ble Supreme Court in Madhab Chandra Pradhan & Ors. Vs. State of Odisha, passed in Special Leave Petition (Crl.) No. 10082/2024 in paragraph 9 of the order dated 05.08.2024:- “9. From a perusal of the record of the case, it is abundantly clear that ample opportunities were given to the defence counsel to cross-examine the victim. When the victim has been examined and 4 then cross-examined at length twice already, mechanically allowing an application for recall of the victim, especially in trial of offences under the POCSO Act would defeat the very purpose of the statute. Hence, we find no error or illegality in the impugned order of the High Court or the Order dt. 10.10.2023 of the Special Court.” 9. The Hon’ble Supreme Court in the matter of State (NCT of Delhi) vs. Shiv Kumar Yadav and Another, reported in (2016) 2 SCC 402 has held that it is not justified to repeatedly summon the witness/victim merely on the basis of change of advocate or alleged deficiency in cross-examination. Paragraph 15 of which is as follows:- “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 for the victims, especially so, of heinous crimes, if they are required to repeatedly appear in court to face cross-examination.” 10. In this case, the trial Court considered the fact that examination 5 and cross examination of witnesses 1 & 2 have already been completed and the provisions of Section 311 CrPC cannot be attracted merely on the ground that certain questions were not asked in cross examination of any witnesses and thus rejected the application. Looking to the material available on record and on perusal of the order impugned it is clear that in this case the evidence of total 9 prosecution witnesses were recorded and in such process, the cross-examination of Victim (PW-2) and her mother (P.W.1) was also complete on 25.06.2025 and the defence was given a reasonable opportunity to cross-examine the said witnesses and the witnesses were discharged from evidence only after their cross-examination at length. 11. Applying the above position of law laid down by Hon’ble the Supreme Court to the facts of the present case and looking to the provisions of Section 33(5) of the Special Act, I do not see any illegality or infirmity in the order impugned warranting interference in this petition. 12. Accordingly, this is dismissed at motion stage itself. Sd/- (Sanjay Kumar Jaiswal) Judge Rao