The Madras High Court has reaffirmed the sanctity of victim protection under the POCSO Act by prohibiting the recall of a minor victim to resolve evidentiary contradictions arising from parental testimony. This ruling reinforces the legislative intent to shield child survivors from re-traumatization and procedural exploitation during trial.
Background & Facts
The Dispute
The petitioner, accused of offences under Section 342 IPC and Sections 3 and 4 of the Protection of Children from Sexual Offences (POCSO) Act, sought to recall P.W.2, the minor victim, to confront contradictions between her testimony and that of P.W.1, her mother. The mother testified that she was informed of the incident by Sakunthala, the wife of her brother, while the victim stated she herself disclosed the abuse to her mother, leading to the complaint. The petitioner argued these inconsistencies were material to establish false implication and prior enmity.
Procedural History
The case progressed as follows:
- 2021: Crime No. 47 of 2021 registered under POCSO Act
- 2022: Charge sheet filed; trial commenced in Special POCSO Court
- 13.07.2023: Both P.W.1 and P.W.2 examined in chief; P.W.2 cross-examined in detail on the same day
- 2023: Petitioner filed C.M.P. No. 911 of 2023 to recall P.W.1; granted on 24.08.2024
- 08.09.2025: P.W.1 appeared after bailable warrant issued; cross-examined in detail
- 25.09.2025: Petitioner filed Crl.M.P. No. 1184 of 2025 to recall P.W.2
- 24.11.2025: Trial Court dismissed recall petition citing Section 33(5) of POCSO Act
- 10.03.2026: Madras High Court dismissed the criminal original petition under Section 528 of BNSS
Relief Sought
The petitioner sought to set aside the Trial Court’s order dismissing the recall petition and to permit the recall of P.W.2 for cross-examination to impeach her credibility based on alleged contradictions with P.W.1.
The Legal Issue
The central question was whether Section 33(5) of the POCSO Act permits the recall of a child victim solely to resolve contradictions arising from the testimony of a third party, such as the victim’s parent, when the victim has already been thoroughly cross-examined.
Arguments Presented
For the Petitioner
The petitioner’s counsel contended that the contradiction between P.W.1 and P.W.2 regarding who initiated the complaint was material to the defence of false implication and prior enmity. He relied on Sankar v. State (Madras HC, 2022), arguing that the right to cross-examine is fundamental under Section 311 CrPC and that the Trial Court erred in invoking Section 33(5) to deny recall. He asserted that the victim’s testimony must be tested against all other evidence to ensure a fair trial.
For the Respondent
The Additional Public Prosecutor argued that the victim had already undergone detailed cross-examination on 13.07.2023, and the petitioner had ample opportunity to probe inconsistencies. He cited Madhab Chandra Pradhan v. State of Orissa to emphasize that recalling a POCSO victim for minor contradictions is impermissible under Section 33(5), which mandates minimizing trauma. He further submitted that the petitioner could establish prior enmity by examining Sakunthala or cross-examining the Investigating Officer, making victim recall unnecessary and prejudicial.
The Court's Analysis
The Court examined the legislative framework of the POCSO Act, particularly Section 33(5), which states: "The child shall not be required to appear before the court more than once, except in exceptional circumstances." The Court held that this provision is not merely procedural but a substantive safeguard rooted in the child’s right to dignity and psychological safety under Article 21.
"The victim has already been subjected to a detailed cross-examination. The contradictions sought to be raised pertain to the source of information received by the mother, not the core incident of abuse. To recall the child for such a purpose would amount to re-victimization under the guise of procedural fairness."
The Court distinguished Sankar v. State, noting that in that case, the victim had not been cross-examined at all, whereas here, the victim’s testimony had been fully tested. The Court emphasized that Section 311 CrPC cannot override the specific protections of Section 33(5), which operates as a lex specialis. The Court further held that the petitioner’s alternative remedies - examining Sakunthala or the Investigating Officer - were adequate and legally available.
The Verdict
The petitioner’s petition was dismissed. The Court held that Section 33(5) of the POCSO Act bars the recall of a child victim to address contradictions in third-party testimony when the victim has already been thoroughly cross-examined. The Trial Court’s order was upheld as legally sound and consistent with the Act’s protective objectives.
What This Means For Similar Cases
Victim Recall Is Not a Tool for Impeachment
- Practitioners must not file recall petitions under Section 311 CrPC to challenge inconsistencies in parental or witness testimony when the victim has already been cross-examined
- Courts will treat such petitions as attempts to circumvent Section 33(5) and will dismiss them summarily
- Defence counsel must focus on alternative witnesses or documentary evidence to establish contradictions
Section 33(5) Overrides General Procedural Powers
- Section 33(5) operates as a special provision that prevails over general provisions like Section 311 CrPC in POCSO cases
- The phrase "exceptional circumstances" in Section 33(5) must be interpreted narrowly - only genuine medical or psychological emergencies qualify
- Defence arguments based on "right to fair trial" cannot override statutory protections for child victims
Defence Strategy Must Shift to Pre-Trial Planning
- Defence teams must identify potential contradictions during the prosecution’s case-in-chief and prepare to challenge them during initial cross-examination
- If a parent’s testimony is inconsistent, the defence should immediately seek to examine third parties (e.g., Sakunthala) or the Investigating Officer
- Delayed recall applications will be viewed with suspicion and likely rejected as dilatory tactics
