The Madras High Court has affirmed that the right to cross-examine witnesses under the Bharatiya Nagarik Suraksha Sanhita (BNSS) cannot be extinguished by the procedural safeguards of the POCSO Act, reinforcing the foundational principle of fair trial even in sensitive child sexual offence cases. This ruling clarifies that statutory protections for victims do not override the accused’s procedural rights under the new criminal code.
Background & Facts
The Dispute
The petitioner, Ranjithkumar @ Mariya Ranjith, is the sole accused in Special Criminal Case No. 32/2021 under the Protection of Children from Sexual Offences (POCSO) Act, 2012. The prosecution examined six witnesses, of whom P.W.1 to P.W.3 were examined and cross-examined. P.W.4 and P.W.5 were examined-in-chief on 29.12.2025, but cross-examination could not proceed due to an advocate’s boycott, which prevented the petitioner’s counsel from appearing.
Key Facts
- The petitioner filed an application on 04.02.2026 under Section 348 of the BNSS seeking recall of P.W.4 and P.W.5 for cross-examination.
- The Special Court for POCSO cases at Nagercoil dismissed the application on 17.03.2026, relying on Section 33(5) of the POCSO Act.
- The petitioner was not present in court on 29.12.2025 due to his counsel’s absence caused by the boycott.
- No prior application for adjournment was made on the date of examination-in-chief.
- The petitioner has already cross-examined P.W.1 to P.W.3.
- The next hearing was scheduled for 20.04.2026, and the petitioner offered to conduct cross-examination on that date.
Procedural History
- 29.12.2025: Examination-in-chief of P.W.4 and P.W.5 conducted; cross-examination deferred due to advocate boycott.
- 04.02.2026: Petitioner files application under Section 348 BNSS to recall P.W.4 and P.W.5.
- 17.03.2026: Special Court dismisses application, citing Section 33(5) POCSO Act as an absolute bar.
- 16.04.2026: Criminal Original Petition filed under Section 528 BNSS before Madras High Court, Madurai Bench.
The Parties' Positions
For the Petitioner
The petitioner’s counsel argued that the failure to cross-examine was not due to any fault or delay on his part, but due to an external event - the advocate boycott. He emphasized that Section 33(5) of the POCSO Act is intended to prevent harassment of the child victim, not to deny the accused a fair opportunity to challenge evidence. He submitted that the application was filed promptly on the next available date and that no prejudice would arise from allowing cross-examination on the next hearing date.
For the Respondent
The Additional Public Prosecutor contended that Section 33(5) of the POCSO Act prohibits any further examination or cross-examination of the child victim after the initial testimony, and that the Special Court was justified in rejecting the application to avoid re-traumatization. The State argued that the accused had ample opportunity to be present and that the boycott was not a valid excuse for non-appearance.
Relief Sought
The petitioner sought the setting aside of the Special Court’s order dated 17.03.2026 and a direction to recall P.W.4 and P.W.5 for cross-examination on the next hearing date, with no further opportunity to be granted thereafter.
The Legal Issue
The central question was whether Section 348 of the BNSS, which permits recall of witnesses for cross-examination, is barred by Section 33(5) of the POCSO Act, which restricts repeated questioning of child victims, and whether the accused’s right to a fair trial can be compromised due to circumstances beyond his control.
Arguments Presented
For the Petitioner
The petitioner relied on the principle that the right to cross-examine is a fundamental component of natural justice and fair trial under Article 21 of the Constitution. He argued that Section 33(5) of the POCSO Act is a protective provision aimed at preventing harassment, not an absolute prohibition on cross-examination. He cited State of Maharashtra v. Madhukar Narayan Mardikar to emphasize that procedural fairness must prevail even in sensitive cases. He further submitted that the application was filed immediately after the impediment ceased, and that the witnesses were not children but adult witnesses (P.W.4 and P.W.5), thus falling outside the protective ambit of Section 33(5).
For the Respondent
The State contended that Section 33(5) of the POCSO Act creates a blanket bar on any further examination of the child victim, and that the Special Court correctly interpreted this provision to prevent any procedural delay or re-examination. The State argued that the accused’s counsel’s absence due to a boycott was not an excusable delay and that the accused should have made alternative arrangements.
The Court's Analysis
The Court examined the interplay between Section 348 of the BNSS and Section 33(5) of the POCSO Act. It noted that Section 33(5) prohibits repeated questioning of the child victim to avoid trauma, but does not explicitly prohibit cross-examination of adult witnesses. The Court observed that P.W.4 and P.W.5 were not identified as child victims in the record, and therefore, the protections under Section 33(5) did not apply to them.
"The object of Section 33(5) is to shield the child victim from repeated trauma, not to deny the accused the right to cross-examine all witnesses in the case."
The Court further held that Section 348 of the BNSS codifies the long-standing principle that an accused must be given a reasonable opportunity to challenge evidence. The failure to cross-examine due to an external event like an advocate boycott, which is beyond the control of the accused, cannot be held against him. The Court emphasized that the application was filed promptly on the next date of hearing, and the petitioner offered to complete cross-examination in a single day.
The Court distinguished this case from situations where delay is intentional or where the accused has had multiple opportunities. Here, the accused had no opportunity at all, and the trial court’s refusal amounted to a denial of a fair trial.
The Verdict
The petition was allowed. The order dated 17.03.2026 of the Special Court dismissing the recall application was set aside. The petitioner is permitted to cross-examine P.W.4 and P.W.5 on a single day, to be scheduled by the trial court. No further opportunity for cross-examination shall be granted. The petitioner shall file the batta within three days of receiving a copy of this order.
What This Means For Similar Cases
Fair Trial Rights Trump Procedural Rigidity
- Practitioners must argue that Section 348 BNSS provides a statutory right to recall witnesses when cross-examination is thwarted by circumstances beyond the accused’s control.
- Courts must distinguish between protection of child victims and denial of cross-examination to adult witnesses.
- Advocate boycotts or unforeseen absences do not constitute waiver of the right to cross-examine.
Section 33(5) POCSO Is Not a Blanket Bar
- Section 33(5) applies only to child victims, not to all prosecution witnesses.
- Prosecution witnesses who are adults, including parents, guardians, or medical personnel, may be recalled for cross-examination under BNSS Section 348.
- Trial courts must conduct a case-specific inquiry before invoking Section 33(5) to deny cross-examination.
Procedural Fairness Requires Flexibility
- The BNSS emphasizes expeditious yet fair trials; rigid application of protective provisions without considering due process violates Article 21.
- Courts should grant one-time opportunities for cross-examination where delay is not attributable to the accused.
- Batta must be filed promptly to prevent abuse of this remedy.
