Page No.# 1/10 GAHC010203902025 2026:GAU-AS:11529 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./1121/2025 SHRI LAKHYAJYOTI TAMULI SON OF RAMU TAMULI RESIDENT OF DA PARBATIA, LENGERA CHUBURI, TEZPUR, POLICE STATION TEZPUR SADAR, POST OFFICE TEZPUR, DISTRICT SONITPUR, ASSAM, PIN 784150 VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM 2:SMTI ANJANA SAIKIA W/O NIRANJAN SAIKIA RESIDENT OF DA PARBATIA BARHOI CHUBURI TEZPUR SONITPUR PS TEZPUR DISTRICT SONITPUR ASSAM PIN- 78415 Advocate for the Petitioner : MR. T DEURI, MS. L WANGSA,U BHARADWAJ,MRS. R S DEURI,MS A DAS Advocate for the Respondent : PP, ASSAM, MS. T PARASHAR, AMICUS CURIAE (R-2) BEFORE HON’BLE MR. JUSTICE SANJEEV KUMAR SHARMA Page No.# 2/10 Date on which judgment is reserved : 05.08.2026 Date of pronouncement of judgment : 14.08.2026 Whether the pronouncement is of the : NA. operative part of the judgment ? Whether the full judgment has been pronounced? : Yes J U D G M E N T & O R D E R (CAV) Heard Mrs. R.S. Deuri, learned counsel for the petitioner. Also heard Mr. M.P. Goswami, learned Additional Public Prosecutor and Ms. T. Parashar, learned Amicus Curiae representing respondent No. 2. 2. This application under Section 528 of the BNSS has been filed by the petitioner, namely Shri. Lakhyajyoti Tamuli, impugning the Order dated 04.08.2025, passed by the Court of the Learned Special Judge, POCSO Sonitpur, Tezpur in Special (POCSO) Case No. 46/2022, whereby the prayer of the petitioner/accused for recalling the victim for the purpose of further cross- examination was rejected. 3. Learned counsel for the petitioner submits that the petitioner seeks to cross-examine the victim further as some material have been left out on the previous occasion. Page No.# 3/10 4. The brief facts necessary for disposal of the instant application are that in the aforesaid proceeding under the Protection of Children from Sexual Offences Act (hereinafter POCSO Act), the victim was examined on 21.02.2023 and she was also cross-examined by the Defence Council on the same date. Subsequently, on 08.07.2025, the petitioner/accused filed a petition under section 348 of the BNSS (Section 311 of Code of Criminal Procedure, 1973) for recall of the victim/PW-1 for cross-examination. 5. It is stated in the said application that some new evidence has come to light which was not available during the original cross-examination of the PW-1 and that there are some material circumstances that need to be contradicted. It was further stated in the said petition that in the event of the PW-1 being recalled, the questions already asked previously shall not be repeated and the cross-examination will be limited to clarifying the ambiguities and contradictions in the original testimony and will not fish for new information and the same will be completed within a reasonable time frame and furthermore, the defence was willing to bear the expenses in connection with recalling of the PW-1. The learned Trial Court by the impugned order after discussing the provisions of Section 311 Cr.PC as enunciated in the case of Rajaram Prasad Yadav versus the State of Bihar reported in (2013) 14 SCC 461 as well as the Page No.# 4/10 decision cited by the learned defence side i.e., “Mahammad Ali Akbar @ Ali Umar v. State of Karnataka reported in 2022 2 Crimes (HC) 512 and the Judgment of the Hon'ble Rajasthan High Court in S.B. Criminal Misc. (Pet.) Nos. 2282/2025, 6206/2024 and 7786/2024( Appellant : Jasaram Pander Vs. Respondent : State of Rajasthan & Ors and Appellant Abdul Haiyat Vs. Respondent: State of Rajasthan & Ors.” came to the following conclusion:- “I have carefully perused the evidence of PW1 victim and found that she has been cross-examined at length by the earlier defence counsel. Upon perusing the petition No. 666/25 it is seen that defence has failed to disclose in the said petition what relevant material was not brought on record by learned previous counsel or what were the materials left to be cross-examined by learned earlier counsel. The power under Section 311 Cr.P.C. must be invoked by court only in order to meet the ends of justice for strong and valid reasons. As the petition No. 666/25 failed to disclose what relevant materials were left to be cross-examined hence, there is no merit in the petition filed by defence side.” 6. The learned Addl. Public Prosecutor as well as learned Amicus Curiae representing the respondent number 2 have referred to Section 33(5)of the POCSO Act which provides as follows:- Page No.# 5/10 “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.” 7. A perusal of the evidence of the PW-1 which was recorded on 21.02.2023 reveals that the victim stated her age to be 21 years on the date of the deposition and by now she would be about 25 years. Therefore, she no longer remains a child as defined in the POCSO Act under Section 2(d) thereof as any person below the age of 18 years. Therefore, the provisions of Section 33(5) of the POCSO Act may not be attracted as of the date of the impugned order. The learned Trial Court has relied upon the decision in Rajaram Prasad Yadav (Supra) regarding the scope and ambit of Section 311 CRPC as follows:- “a) Whether the court is right in thinking that the new evidence is needed by it" whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case? b) The exercise of the widest discretionary power under section 311 Code of Criminal Procedure should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts as thereby the ends of Justice would be defeated. c) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person. d) The exercise of power under Section 311 Code of Criminal Procedure Page No.# 6/10 should be resorted to only with the object of fining out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case. e) The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice. f) The wide discretionary power should be exercised judiciously and not arbitrarily. g) The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case. h) The object of section 311 Code of Criminal Procedure simultaneously imposes a duty on the Court to determine the truth and to render a just decision. i) The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered. j) Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. Page No.# 7/10 k) The court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirables results. l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party. m) The power must be exercised keeping: in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party. n) The power under section 311 Code of Criminal Procedure must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. 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." 8. Ultimately, the learned Trial Court rejected the application primarily for two reasons: Firstly, the victim has been cross-examined at length by the earlier defense counsel and Secondly, in the application for recall, the defense has failed to disclose what relevant material was not brought on record by the learned previous council or as to what were the materials left upon which cross- Page No.# 8/10 examination is required. 9. The learned Trial Court may be correct in its finding that the victim was cross-examined at length by the earlier defense counsel but that does not preclude the possibility of emergence of new material. At the same time, it is also correctly observed that the petitioner has not mentioned what new material has arisen or as to what other points on which the victim is required to be cross-examined. 10. It may not always be possible for the defense to disclose such material as has been referred to above as doing so may give away the defense of the accused and in our criminal justice system, the accused is protected from doing so. However, the Court is also required, while deciding an application of such nature as to whether recalling of a witness or summoning of a new witness is necessary or essential in the interest of justice and for that purpose, some material may be necessary in order to act upon the prayer for recall of a witness/summoning of a new witness. 11. In this regard what needs to be bourne in mind is that as far as trials under the POCSO Act is concerned, the accused is under a heavy burden to establish his defense by discrediting the prosecution case, in view of the presumption available to the prosecution under Section 29 of the POCSO Act Page No.# 9/10 and therefore, it is all the more imperative that the accused gets every possible opportunity which would go to establish his defense. Therefore, while keeping in mind the principles enunciated by the Hon’ble Apex Court for exercise of jurisdiction under Section 311 Cr.PC, a liberal approach to such applications made by an accused in a trial under the POCSO Act is required. 12. As far as the question of availability of necessary materials or compelling reasons for which the Court would exercise his jurisdiction under Section 311 Cr.PC to recall a witness is concerned, the same can be taken care of to a large extent if the defense submits to the court, in sealed cover, the materials or questions which the defense proposes to put to the witness sought to be recalled and in that event, it would be for the learned Trial Court to decide whether such materials or questions as furnished by the defense warranted the recalling of the witness. 13. In view of the aforesaid discussion, the matter is remanded back to the learned Trial Court with the observation that in the event the defense makes a fresh application alongwith the materials and questions, if necessary contained in sealed cover, the learned Trial Court shall consider the same and pass orders in terms of the observations made above, without disclosing the defence. Such application, if so advised, shall be filed within a period of 14 days from the date Page No.# 10/10 of this order before the learned Trial Court and in the event of the same being disposed in favor of the accused, the exercise of recalling and cross-examination of the witness shall be carried out within another 30 days thereof. 14. With the aforesaid observations and directions the petition stands disposed of. JUDGE Comparing Assistant