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2026 DAILYLAW 58 (BOM)

Madhu Naik v. State of Goa

2026-03-27

Amit S Jamsandekar

body2026
JUDGMENT : AMIT S. JAMSANDEKAR, J. 1. Rule. The Rule is made returnable forthwith at the request and by consent of the Learned Counsel for the parties. The Additional Public Prosecutor on behalf of the State and Learned Counsel appearing for the Original Complainant and the Victim waive service. The Original Complainant and the Investigating Officer are personally present in Court. 2. The Petitioner, by the present petition has challenged the Order dated 17 th December 2025 ( the Impugned Order ) passed by the President, Children’s Court for the State of Goa ( the Learned Judge ), in Special Case No. 36/2023. The Learned Judge, by the Impugned Order, dismissed the Petitioner’s Application ( the said Application ) under Section 348 of Bharatiya Nagarik Suraksha Sanhita ( BNSS ) (Section 311 of Criminal Procedure Code) to recall the witnesses for further cross-examination. 3. The Petitioner is undergoing trial before the Learned Judge for the offences under Section 354, 376 and 506(ii) of the Indian Penal Code ( IPC ), Section 8(ii) of the Goa Children’s Act, 2003 and Section 6 of the Prevention of Children from Sexual Offences Act, 2012 ( POCSO Act ). He is presently lodged in judicial custody. The Victim is now 13 years old, who is the younger daughter of the Petitioner. The allegations against the Petitioner are that the Petitioner, from 2018 till December 2019, had forcible sexual intercourse with the 12-year-old minor and has committed rape on her on several occasions. The complaint dated 12th April 2023 and the Victim’s statement dated 13th April 2023 also state that there is another offence registered in the State of Karnataka against the Petitioner of rape and kidnapping. 4. The witnesses proposed to be recalled, as per the said Application, are PW1 (the Victim’s mother), PW2 (the Victim), and PW3 (the Victim’s sister). PW1 was cross-examined on 14 th March 2024, 29th May 2024 and on 07th October 2024, PW2 on 18 th November 2024 and PW3 on 11 th December 2024. Thus, the cross-examination of PW1, PW2 and PW3 was concluded on 11 th December 2024. Thereafter, the cross-examination of PW4 and PW5 was concluded on 21st March 2025 and 28th April 2025, respectively. Further, the matter is now kept for the evidence of the Investigating Officer on 31st March 2026. 5. Thus, the cross-examination of PW1, PW2 and PW3 was concluded on 11 th December 2024. Thereafter, the cross-examination of PW4 and PW5 was concluded on 21st March 2025 and 28th April 2025, respectively. Further, the matter is now kept for the evidence of the Investigating Officer on 31st March 2026. 5. The sole ground in the said Application is that the cross-examination conducted on behalf of the Petitioner by the earlier Advocate of the PW1, PW2 and PW3 is in a highly perfunctory and casual manner. Though the Learned Advocate was instructed about the material facts, the relevant and material questions were not asked to confront the witnesses. It is further submitted that the cross-examination conducted by the earlier Advocate of the Petitioner merely consisted of bald suggestions without confronting the witness with material contradictions, omissions, or relevant facts necessary for an effective defence, etc. 5.1 Mr. Sardessai, the Learned Counsel appearing for the Petitioner, submitted that the Impugned Order has caused irreparable prejudice to the Petitioner and thus has resulted in a complete miscarriage of justice. Mr. Sardessai reiterated the grounds taken by the Petitioner in the said Application. He further submitted that the said Application was filed, inter alia, on the ground that effective cross-examination would bring ends of justice and not solely on the ground of cross-examination being incomplete. The said Application is bona fide and not made merely to fill in any lacuna in the cross-examination. It is submitted that the Learned Judge has failed to strike a balance between the need for expeditious trial and the fundamental right of the accused to effectively defend himself. Mr. Sardessai supported his submission by citing the judgment of the Hon’ble Supreme Court in the case of Rajaram Prasad Yadav v. State of Bihar & Anr. (2013) 14 SCC 461 . He further submitted that the Learned Judge ought to have assigned a reason that, by the said application, the Petitioner is trying to fill in the lacuna in the earlier cross-examination. If there are no such findings, then in the interest of justice and fair trial to bring the truth on record, the said application ought to have been allowed. By citing Kumar Sahu v. Bhubanananda Sahu , Manu/SCOR/15950/2025 (in which Rafiq v. Munshilal , (1981) 2 SCC 788 is relied upon by the Hon’ble Supreme Court), it is further submitted by Mr. By citing Kumar Sahu v. Bhubanananda Sahu , Manu/SCOR/15950/2025 (in which Rafiq v. Munshilal , (1981) 2 SCC 788 is relied upon by the Hon’ble Supreme Court), it is further submitted by Mr. Sardessai that the Petitioner ought not to suffer because of the acts of the Advocate who represented the Petitioner. He further submitted that the Court should be magnanimous in permitting such mistakes to be rectified. 6. Ms. Kamat Wagh, the Learned Additional Public Prosecutor, submitted that the said Application seeking recall of the minor Victim is contrary to the mandate and protective framework of the Goa Children’s Act, 2003 and that of POCSO Act. A reference is made to Section 8 of the Goa Children’s Act, 2003, which criminalises child abuse and mandates that authorities respond in a manner that safeguards the physical and mental well-being of the child. She submitted that subjecting a minor to repeated examination, even after she has deposed, would amount to unnecessary psychological harassment and would defeat the spirit and object of the Goa Children’s Act, 2003. It is submitted that the Petitioner is the father of the Victim and the Victim has undergone tremendous trauma due to the acts of the Petitioner and due to the ongoing proceedings. Further, she submitted that the Petitioner, at his own volition, chose to discontinue the services of a private Advocate and applied for free legal aid. Accordingly, the Defence Counsel was provided to the Petitioner through the State Legal Aid. Thereafter, he once again engaged the services of the present private Advocate and filed the said Application. It is submitted that recalling the witnesses in the present case would be contrary to the legislative intent of the POCSO Act, and therefore, the said Application has been rightly rejected. To support her submissions, Ms. Kamat Wagh has placed reliance on State (NCT of Delhi) v. Shiv Kumar Yadav and Anr. (2016) 2 SCC 402 , Madhab Chandra Pradhan and Ors. v. State of Odisha , SLP (CRL) No. 10082/2024 dated 05.08.2024 , State of Haryana v. Ram Mehar , (2016) 8 SCC 762 and Arjun Sonar v. The State of Arunachal Pradesh , 2025 SCC Online SC 2065. 7. The Petition is vehemently opposed also by Ms. Kaur, the Learned Counsel appearing for the Complainant and the Victim. She submitted that no ground whatsoever was made out by the Petitioner before the Learned Judge. 7. The Petition is vehemently opposed also by Ms. Kaur, the Learned Counsel appearing for the Complainant and the Victim. She submitted that no ground whatsoever was made out by the Petitioner before the Learned Judge. The said Application is merely a delaying tactic and was filed after a considerable delay. It is further submitted by Ms. Kaur that the said Application and the present Petition are based on completely vague and unsubstantiated averments. There are no particulars of the alleged material facts and no explanation is provided as to how the alleged material facts are essential for a just decision. She submitted that just because a new lawyer wants to change the line of cross-examination, it cannot be a ground to recall the witnesses. It is further submitted that the Victim and the Complainant have already suffered trauma, and recalling them for further cross-examination would compromise their dignity and the fundamental rights under the Constitution of India. 8. With this factual background and the rival submissions made on behalf of the parties, I have perused the record and the Impugned Order. 9. Before I proceed to deal with the rival submissions, it would be appropriate to consider the well-established principles of law governing Section 348 of the BNSS (Section 311 of the Criminal Procedure Code). The powers under Section 348 of the BNSS are very wide and therefore ought to be exercised judicially. The Hon’ble Supreme Court in Iddar & Ors. v. Aabida & Ors ., AIR 2007 SC 3029 , (paragraph 11) has held that ‘…………It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judicially, as the wider the power the greater is the necessity for application of judicial mind . ’ (Emphasis supplied) 10. In Rajaram Prasad Yadav (supra), the Hon’ble Supreme Court after considering various judgments, laid down the guiding principles to decide the applications under Section 311 of the Criminal Procedure Code, which read as follows: “17 From a conspectus consideration of the above decisions, while dealing with an application under Section 311 read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts:- “17.1. Whether the court is right in thinking that the new evidence is needed by it? 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 17.2. The exercise of the widest discretionary power under Section 311 CrPC should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated. 17.3. If evidence of any witness appears to the court to be essential to the just decision of the case, i t is the power of the court to summon and examine or recall and re-examine any such person. 17.4. The exercise of power under Section 311 CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case. 17.5. 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. 17.6. The wide discretionary power should be exercised judiciously and not arbitrarily. 17.7. 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. 17.8. The object of Section 311 CrPC simultaneously imposes a duty on the court to determine the truth and to render a just decision. 17.9. 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. 17.10. Exigency of the situation, fair play and good sense should be the safeguard, 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. 17.11. 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. 17.11. 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 undesirable results. 17.12. The additional evidence must not be received as a disguise or to change the nature of the case against any of the party 17.13. 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. 17.14. The power under Section 311 CrPC 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 .” (Emphasis supplied) 11. Subsequently, the Hon’ble Supreme Court in State (NCT of Delhi) v. Shiv Kumar Yadav (supra) , considered the guidelines laid down in Rajaram Prasad Yadav (supra), and has held that: 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. 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. … 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. 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 for the victims, especially so, of heinous crimes, if they are required to repeatedly appear in court to face cross- examination. 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. 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.” (Emphasis supplied) 12. Having regard to these considerations, we do not find any ground to justify the recall of witnesses already examined.” (Emphasis supplied) 12. While summarising the above, the Hon’ble Supreme Court in para 29 of the judgment, inter alia, held that no finding could be recorded that the Counsel appointed by the accused were incompetent, particularly at the back of such Counsel. Therefore, it is held that a mere change of Counsel cannot be a ground to recall the witness. 13. The guidelines in Rajaram Prasad Yadav (supra) are further considered and explained by the Hon’ble Supreme Court in State of Haryana v. Ram Mehar (supra). The Hon’ble Supreme Court has explained the meaning of ‘magnanimous approach’ and how it should be understood. It is held that: 39. There is a definite purpose in referring to the aforesaid authorities. We are absolutely conscious about the factual matrix in the said cases. The observations were made in the context where examination-in-chief was deferred for quite a long time and the procrastination ruled as the Monarch. Our reference to the said authorities should not be construed to mean that Section 311 CrPC should not be allowed to have its full play. But, a prominent one, the courts cannot ignore the factual score. Recalling of witnesses as envisaged under the said statutory provision on the grounds that accused persons are in custody, the prosecution was allowed to recall some of its witnesses earlier, the counsel was ill and magnanimity commands fairness should be shown, we are inclined to think, are not acceptable in the obtaining factual matrix . The decisions which have used the words that the court should be magnanimous, needless to give special emphasis, did not mean to convey individual generosity or magnanimity which is founded on any kind of fanciful notion . It has to be applied on the basis of judicially established and accepted principles. The approach may be liberal but that does not necessarily mean “the liberal approach” shall be the rule and all other parameters shall become exceptions . Recall of some witnesses by the prosecution at one point of time, can never be ground to entertain a petition by the defence though no acceptable ground is made out. It is not an arithmetical distribution. This kind of reasoning can be dangerous. 40. In the case at hand, the prosecution had examined all the witnesses. Recall of some witnesses by the prosecution at one point of time, can never be ground to entertain a petition by the defence though no acceptable ground is made out. It is not an arithmetical distribution. This kind of reasoning can be dangerous. 40. In the case at hand, the prosecution had examined all the witnesses. The statements of all the accused persons, that is, 148 in number, had been recorded under Section 313 CrPC. The defence had examined 15 witnesses. The foundation for recall, as is evincible from the applications filed, does not even remotely make out a case that such recalling is necessary for just decision of the case or to arrive at the truth. The singular ground which prominently comes to surface is that the earlier counsel who was engaged by the defence had not put some questions and failed to put some questions and give certain suggestions. It has come on record that number of lawyers were engaged by the defence. The accused persons had engaged counsel of their choice. In such a situation recalling of witnesses indubitably cannot form the foundation. If it is accepted as a ground, there would be possibility of a retrial. There may be an occasion when such a ground may weigh with the court, but definitely the instant case does not arouse the judicial conscience within the established norms of Section 311 CrPC for exercise of such jurisdiction. 41. It is noticeable that the High Court has been persuaded by the submission that recalling of witnesses and their cross-examination would not take much time and that apart, the cross-examination could be restricted to certain aspects. In this regard, we are obliged to observe that the High Court has failed to appreciate that the witnesses have been sought to be recalled for further cross-examination to elicit certain facts for establishing certain discrepancies; and also to be given certain suggestions. We are disposed to think that this kind of plea in a case of this nature and at this stage could not have been allowed to be entertained. 42. At this juncture, we think it apt to state that the exercise of power under Section 311 CrPC can be sought to be invoked either by the prosecution or by the accused persons or by the Court itself. 42. At this juncture, we think it apt to state that the exercise of power under Section 311 CrPC can be sought to be invoked either by the prosecution or by the accused persons or by the Court itself. The High Court has been moved by the ground that the accused persons are in the custody and the concept of speedy trial is not nullified and no prejudice is caused, and, therefore, the principle of magnanimity should apply. Suffice it to say, a criminal trial does not singularly centres around the accused. In it there is involvement of the prosecution, the victim and the victim represents the collective. The cry of the collective may not be uttered in decibels which is physically audible in the court premises, but the Court has to remain sensitive to such silent cries and the agonies, for the society seeks justice. Therefore, a balance has to be struck. We have already explained the use of the words “magnanimous approach” and ho w it should be understood. Regard being had to the concept of balance, and weighing the factual score on the scale of balance, we are of the convinced opinion that the High Court has fallen into absolute error in axing the order passed by the learned trial Judge. If we allow ourselves to say, when the concept of fair trial is limitlessly stretched, having no boundaries, the orders like the present one may fall in the arena of sanctuary of errors. Hence, we reiterate the necessity of doctrine of balance.” 14. These guidelines will have to be made applicable to all applications under Section 348 of the BNSS, filed to recall a witness. 15. When it comes to special legislations, such as the POCSO Act and the Goa Children’s Act, 2003, the guidelines will have to be applied in consonance with and in conformity with the provisions of these special legislations. Depending on the nature, purpose, and object of the special legislation, the Court's approach ought to vary when deciding an application to recall a witness by applying the above guidelines. 16. Therefore, the said Application of the Petitioner will also have to be viewed from the perspectives of the Victim and other witnesses and the provisions of Section 33 of the POCSO Act. 17. Section 33 of POCSO Act reads as follows: 33. 16. Therefore, the said Application of the Petitioner will also have to be viewed from the perspectives of the Victim and other witnesses and the provisions of Section 33 of the POCSO Act. 17. Section 33 of POCSO Act reads as follows: 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. (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: Provided that for reasons to be recorded in writing, the Special Court may permit such disclosure, if in its opinion such disclosure is in the interest of the child. Explanation.—For the purposes of this sub-section, the identity of the child shall include the identity of the child's family, school, relatives, neighbourhood or any other information by which the identity of the child may be revealed. (8) In appropriate cases, the Special Court may, in addition to the punishment, direct payment of such compensation as may be prescribed to the child for any physical or mental trauma caused to him or for immediate rehabilitation of such child. (8) In appropriate cases, the Special Court may, in addition to the punishment, direct payment of such compensation as may be prescribed to the child for any physical or mental trauma caused to him or for immediate rehabilitation of such child. (9) Subject to the provisions of this Act, a Special Court shall, for the purpose of the trial of any offence under this Act, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session, and as far as may be, in accordance with the procedure specified in the Code of Criminal Procedure, 1973 (2 of 1974)29 for trial before a Court of Session. (Emphasis supplied) 18. The entire scheme of Section 33 of POCSO Act is to ensure that the child, inter alia, does not suffer, mentally, physically or socially due to the proceedings. The provisions of Section 33 ensure that the child is not further victimised by the proceedings, such as being called repeatedly to testify in Court. This is a special provision made in the POCSO Act. 19. The Hon’ble Supreme Court in Arjun Sonar v. The State of Arunachal Pradesh (supra), while dealing with the conviction under Section 6 of POCSO Act, dealt with a similar situation. The conviction was challenged on the ground that the Defence Counsel who appeared for the accused did not cross-examine the prosecutrix and, therefore, the accused was denied effective legal assistance. On this plea, the Hon’ble Supreme Court has held that: “6. The fact that the defence counsel chose not to cross-examine the prosecutrix cannot by itself vitiate the proceedings, especially when the accused was present and made no protest application either to cross-examine the prosecutrix or immediately on the next date of hearing seeking for recall of the witness. There is nothing on record to show that the trial was unfair and caused miscarriage of justice. The effort now to seek re-examination of the victim, is an ineffective plea to reopen the trial. We also reject the contention regarding the late filing of the CFSL Report. 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. We also reject the contention regarding the late filing of the CFSL Report. 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. 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. 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.” (Emphasis supplied) 20. Though these findings of the Hon’ble Supreme Court are in respect of facts where the plea was taken by the accused after conviction, the same shall also apply to a situation where the trial is ongoing and the application for recall is made by the accused. 21. Therefore, an extremely stricter approach ought to be adopted, especially in proceedings relating to legislation such as the POCSO Act and the Goa Children’s Act, 2003 while deciding applications under Section 348 of the BNSS. The application under Section 348 of the BNSS cannot be made as a fishing enquiry and certainly not after a substantial delay. 22. Further, the POCSO Act makes another provision by virtue of Section 42-A by which the provisions of POCSO Act are made in addition to any other law. The application under Section 348 of the BNSS cannot be made as a fishing enquiry and certainly not after a substantial delay. 22. Further, the POCSO Act makes another provision by virtue of Section 42-A by which the provisions of POCSO Act are made in addition to any other law. Section 42-A reads as follows: 42-A. Act not in derogation of any other law .—The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency. 23. Therefore, the legal principles relating to ‘vulnerable witnesses’ evolved through the judicial pronouncements of the Hon’ble Supreme Court and narrated in Smruti Badade v. State of Maharashtra , (2022) 18 SCC 24 , are also applicable to the applications filed under Section 348 of the BNSS in trial under the POCSO Act and principles relating to ‘vulnerable witnesses’ ought to be one of the factors to decide applications under Section 348 of the BNSS. The term ‘vulnerable witnesses’ is not confined to the list provided by the Hon’ble Supreme Court in para 7.1 of the judgment, which reads as follows: “ 7.1. The term ‘vulnerable witnesses’ is not confined to the list provided by the Hon’ble Supreme Court in para 7.1 of the judgment, which reads as follows: “ 7.1. The definition of “vulnerable witness” contained in Clause 3(a) of the “Guidelines for recording evidence of vulnerable witnesses in criminal matters of the High Court of Delhi shall not be limited only to child witnesses who have attained the age of 18 years and should be expanded to include, inter alia, the following categories of vulnerable witnesses: (a) Age neutral victims of sexual assault read with Sections 273 and 327 of the Code of Criminal Procedure, 1973 and Section 354 of the Penal Code, 1860 (IPC); (b) Gender neutral victims of sexual assault read with Section 2(d) of the Protection of Children from Sexual Offences Act, 2012 (c) Age and gender neutral victims of sexual assault under Section 377 of the Penal Code, 1860 read with para 34(1) of the decision in Sakshi [Sakshi v. Union of India, (2004) 5 SCC 518 : 2004 SCC (Cri) 1645] ; (d) Witnesses suffering from “mental illness” as defined under Section 2(s) of the Mental Healthcare Act, 2017 read with Section 118 of the Evidence Act, 1872; (e) Any witness deemed to have a threat perception under the Witness Protection Scheme, 2018 of the Union Government as approved by this Court in Mahender Chawla v. Union of India [Mahender Chawla v. Union of India, (2019) 14 SCC 615 : (2020) 2 SCC (Cri) 101] ; (f) Any speech or hearing impaired individual or a person suffering from any other disability who is considered to be a vulnerable witness by the competent court; (g) Any other witness deemed to be vulnerable by the court concerned .” (Emphasis supplied) 24. By virtue of paragraph 7.1 (g) of the judgment, the scope of the term ‘vulnerable witnesses’ is very wide, and when it comes to legislations such as the POCSO Act and the Goa Children’s Act, 2003, it includes the Complainant, Victim’s family members who are witnesses in the proceedings. In matters covered by the POCSO Act and the Goa Children’s Act, 2003, the Complainant, Victim’s family members who are witnesses in the proceedings are already traumatised, mentally and socially. Therefore, they are ‘vulnerable witnesses’. 25. The powers of the Court under Section 348 of the BNSS are to be exercised exceptionally and not in a routine manner. In matters covered by the POCSO Act and the Goa Children’s Act, 2003, the Complainant, Victim’s family members who are witnesses in the proceedings are already traumatised, mentally and socially. Therefore, they are ‘vulnerable witnesses’. 25. The powers of the Court under Section 348 of the BNSS are to be exercised exceptionally and not in a routine manner. The powers are confirmed on the Court to discover the truth. The grounds of the application under Section 348 of the BNSS should be established without any doubt, and then only the discretionary powers ought to be exercised by the Court judicially. Fishing attempts are not permissible by making vague averments in the application. The Court will have to strike a balance between the rights of both parties when deciding an application under Section 348 of the BNSS. The approach to fairness in trial ought also to be viewed from the perspectives of the Victim, the witnesses, society, and the criminal justice system. The grounds, such as the Advocate appointed by the party, did not ask some of the questions in the cross-examination, are not good and tangible grounds. If the cross-examination is reopened on this ground, there will be no end to the trial. If applications under Section 348 are allowed on such grounds, that too after a substantial delay, and the witnesses are recalled in proceedings under special legislations such as POCSO Act and the Goa Children’s Act, then the entire object of these special legislations will be frustrated. The provisions, such as Section 33 of POCSO Act, will be made redundant. 26. An application to recall a witness ought to be founded on tangible grounds. The grounds should be such that they will give confidence to the Court to arrive at a finding that if the application to recall a witness is not allowed, then it will cause a severe prejudice to the applicant and shall result in a miscarriage of justice. Therefore, an application under Section 348 of the BNSS should contain all the material particulars to support the tangible grounds so that the Court can decide whether the evidence is germane to the issue involved and the additional evidence is necessary. No casual or mechanical approach can be adopted by the applicant merely by stating that, if a witness is not recalled, the trial would result in a miscarriage of justice. No casual or mechanical approach can be adopted by the applicant merely by stating that, if a witness is not recalled, the trial would result in a miscarriage of justice. An application after a considerable delay ought to be discouraged. Recalling a witness cannot be done routinely, and certainly it is not a matter of right. 27. Therefore, what is alleged to be fair to the accused cannot result in unfairness to the victims and witnesses, and, in turn, to the entire proceedings. The principle of ‘fair trial’ applies equally to the Complainant, the Victim and the witnesses. 28. In the present case, upon perusing the records before me, it can be seen that the cross-examination of the witnesses proposed to be recalled, was closed on 11 th December 2024. The Victim, who is 13 years old, has already been cross-examined. Thereafter, three more witnesses are examined. 29. While recording the Victim’s evidence, a note is made by the Learned Judge that the “witness is continuously weeping and taking time to depose.” 30. The sole ground in the said Application is that the earlier Advocate of the Petitioner did not ask material questions in the cross-examination of the prosecution’s witnesses. It is not the case of the Petitioner that the proceedings will result in a miscarriage of justice because the Petitioner was not given legal aid or was not represented by a lawyer. The ground is that the cross-examination conducted by the Defence Counsel is not adequate and no material questions were asked in the cross-examination to confront the witnesses about the material facts. 31. The Petitioner was initially represented by a private Advocate who cross-examined PW1. Thereafter, the said Advocate stopped appearing in the proceedings before the Learned Judge and the Petitioner was given multiple opportunities to secure his presence. Following the same, the Petitioner then applied for free legal aid, and as such, a legal aid Defence Counsel was appointed to represent the Petitioner. The Defence Counsel conducted cross-examination of PW1, PW2, PW3, PW4 and PW5. Cross- examination of PW5 was concluded on 28 th April 2025. No grievance was made by the Petitioner, and no application was made thereafter by the Petitioner. Thereafter, the Petitioner engaged the services of the present Advocate, who has filed the said Application only on 16th October 2025. 32. Cross- examination of PW5 was concluded on 28 th April 2025. No grievance was made by the Petitioner, and no application was made thereafter by the Petitioner. Thereafter, the Petitioner engaged the services of the present Advocate, who has filed the said Application only on 16th October 2025. 32. Therefore, there is no question that the Petitioner did not get a fair trial. All the precautions were taken to ensure that the Petitioner gets a fair trial and therefore the Defence Counsel was appointed on behalf of the Petitioner. 33. The Petitioner has only made vague averments in the said Application. There are no material particulars on record that explain the material facts or evidence that the Petitioner seeks to rely upon. Therefore, the Counsel’s alleged failure to ask relevant questions in cross-examination cannot be the ground for recalling witnesses. Also, the Petitioner has approached the Court at a much belated stage. The evidence of PW3, who was examined last amongst the first three witnesses proposed to be recalled, was closed on 11 th December 2024. The Petitioner filed the said Application after a delay of more than 9 months. I find that the said Application of the Petitioner is malafide and solely to plug a lacuna in the evidence. 34. Further, the allegations in the present matter of rape are against the father. The Victim, Victim’s mother and sister have already gone through the trauma, and if they are to be recalled after more than a year, then certainly they will be more traumatised. It would be unfair to put these vulnerable individuals in a traumatised situation once again under the shadow of a fair trial. If re-calling is allowed in this case, it would be contrary to the provisions of Section 33 of the POCSO Act and the ‘vulnerable witness’ principles. 35. Therefore, I reject all the submissions made on behalf of the Petitioner. 36. In view thereof, I find that the Learned Judge has considered the grounds mentioned in the said Application under Section 348 of the BNSS and has passed a well-reasoned order. I do not find any perversity or arbitrariness in the Impugned Order. The Impugned Order is based on a judicious exercise of powers and is within the parameters of well-established principles of law. Therefore, there is absolutely no reason to interfere with the discretion exercised by the Learned Judge. 37. I do not find any perversity or arbitrariness in the Impugned Order. The Impugned Order is based on a judicious exercise of powers and is within the parameters of well-established principles of law. Therefore, there is absolutely no reason to interfere with the discretion exercised by the Learned Judge. 37. Therefore, the Writ Petition is dismissed and the Rule is discharged. 38. I would have been fully justified in imposing cost on the Petitioner in this matter. However, due to the persuasive skills of Mr. Sardessai, I have refrained from doing so. Accordingly, there shall be no order as to cost. 39. This order will be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerns will act on the production by fax or email or any electronic mode of a digitally signed copy of this order.