Karnataka High Court
Channappa S/O Mahadevappa Sapure vs The State Of Karnataka on 13 January, 2026
Author: V.Srishananda
Bench: V.Srishananda
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NC: 2026:KHC-D:373
CRL.P No. 104748 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 13TH DAY OF JANUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE V.SRISHANANDA
CRIMINAL PETITION NO.104748 OF 2025
(482(CR.PC)/528(BNSS))
BETWEEN:
CHANNAPPA S/O MAHADEVAPPA SAPURE,
AGE: 28 YEARS,
OCCUPATION: FARMER (PRIVATE SERVICE),
R/O. KAMALAPUR, BALAGI ONI,
TALUK AND DISTRICT: DHARWAD-580001.
...PETITIONER
(BY SRI. A.R. PATIL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
R/BY ADDL. STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA, DHARWAD BENCH,
SUB-URBAN POLICE STATION, DHARWAD 580011.
2. SMT. ROOPA W/O. SHANKAR AMBANNAVAR,
AGE: 37 YEARS, OCC. HOUSEWIFE,
R/O. MALAPUR LAST BUS STOP,
Digitally signed by
CHANDRASHEKAR
LAXMAN
KATTIMANI
YETTINAGUDDA ROAD, DHARWAD.
Location: High
Court of
Karnataka,
PIN 580002.
Dharwad Bench
...RESPONDENTS
(BY SMT. KIRTILATA R. PATIL, HCGP FOR R1;
SRI. L.S. SULLAD, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED U/S 528 OF BNSS, 2023,
PRAYING TO SET ASIDE THE ORDER DATED 15/11/2025 PASSED BY
THE COURT OF II ADDL. DISTRICT AND SESSIONS JUDGE AND
SPECIAL COURT (POCSO), DHARWAD IN SPECIAL S.C. (POCSO)
NO.52/2022, WHEREBY THE PETITIONERS APPLICATION U/S 311
CR.P.C., (CORRESPONDING TO SECTION 349 OF THE BNSS, 2023)
FOR RECALLING PW-4/C. W. 8 FOR FURTHER CROSS-EXAMINATION
AND ALLOW THE PETITIONER'S APPLICATION U/S 311
CR.P.C./SECTION 349 OF BNSS AND DIRECT THE TRIAL COURT TO
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NC: 2026:KHC-D:373
CRL.P No. 104748 of 2025
HC-KAR
RECALL PW-4 FOR LIMITED AND SPECIFIC FURTHER CROSS
EXAMINATION ON THE POINTS MENTIONED IN THE APPLICATION, IN
THE INTEREST OF JUSTICE.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA) Heard Sri A.R.Patil, learned counsel for the petitioner, Smt.Kirtilata R.Patil, learned High Court Government Pleader for respondent No.1 and Sri L.S.Sullad, learned counsel for respondent No.2.
2. Accused in Special S.C.No.52/2022 is the petitioner challenging the order passed by the learned Special Judge rejecting the application filed under Section 311 Cr.P.C.
3. Facts in the nutshell which are utmost necessary for disposal of the present petition are as under:
3.1 Accused is charge sheeted for the offences punishable under Section 363, 376, 323, 506 IPC and Section 6 and 10 of the POCSO Act. After securing the presence of the accused, charges are framed and trial has commenced. Victim girl is aged 8 years. She has been examined as PW4.-3-
NC: 2026:KHC-D:373 CRL.P No. 104748 of 2025 HC-KAR 3.2. After examination of PW5, an application is filed on behalf of the accused seeking recall of PW4 for further cross- examination by filing an application under Section 311 Cr.P.C.
3.3. Application contents read as under:
"Herein the Advocate for the accused most respectfully submits as follows;
01. That Counsel for the accused has cross examined the witness since the alleged offences is serious in nature and the Cross examination of P.W-4/C W-8. is very much essential who is victim and material witness in the case and therefore, kindly Re-call P.W-4 for further cross examination on behalf of accused by allowing the application.
WHEREFORE, this Hon'ble Court may kindly be pleased to Re-Call P.W-4/ C.W-8 for further Cross examination by Accused by allowing the application in the ends of justice and equity."
4. Application was opposed by the prosecution by filing detailed written objections by specifically contending that no reasons whatsoever are sought for recalling the PW4 as could be seen from Para 4 of the objection statement. -4-
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5. Learned trial Judge after hearing arguments of the parties, referred to the judgment of the Hon'ble Apex Court in case of MADHAB CHANDRA PRADHAN AND OTHERS V. STATE OF ODISHA dismissed the application filed under Section 311 Cr.P.C. by the accused.
6. Correctness of the said order is called in question in the present petition on following grounds:
It is humbly submitted that to recall a witness is not restricted by opportunities to give the accused for cross examination, so long as the court is satisfied that further examination is essential for the just decision of the case. The Special Court failed to consider that the Supreme Court and High Courts have repeatedly held that the power under Section 311 Cr.P.C. is extremely wide, and is intended to enable the court to discover the truth.
While acknowledging the protective mandate of Section 33(5) of the POCSO Act, the Trial Court erred in treating this provision as an absolute bar to recall, which must be balanced against the Accused's right to a fair defense. The case law cited by the Court itself (Madhab Chandra Pradhan) does not create an absolute bar but demands a high standard of justification, which the Petitioner -5- NC: 2026:KHC-D:373 CRL.P No. 104748 of 2025 HC-KAR submits has been met, especially since the recall is sought for a limited and essential purpose justice.
The trial court relied on the ruling in Madhab Chandra Pradhan vs State of Odisha (05.08.2024), which held in para 9 that mechanically allowing recall of a POCSO victim after two cross- examinations defeats the purpose of the Act. However, in the present case, the request was not mechanical. The defence specifically sought recall to confront PW-4 on inconsistencies that emerged from subsequent prosecution witnesses and documents after her cross-examination. These aspects were not earlier available or known. Failure to allow recall in such circumstances deprives the accused of opportunity, which is a fundamental right under Article 21.
Since the impugned order causes grave prejudice and results in potential miscarriage of justice, the petitioner is rightly invoking the jurisdiction of this Hon'ble Court under Section 528 BNSS. This Court has ample powers to ensure that the trial proceeds in accordance with law and fairness.
The rejection severely prejudices the Petitioner's ability to defend the case, particularly by hindering the rebuttal of the mandatory statutory presumptions under Sections 29 and 30 of the POCSO Act. The right to test the credibility of the primary witness on key material facts is -6- NC: 2026:KHC-D:373 CRL.P No. 104748 of 2025 HC-KAR indispensable for successfully rebutting these presumptions.
The Trial Court misinterpreted the object of the POCSO Act. While the Act seeks to protect victims from repeated trauma, it does not prohibit recall of a witness when necessary for the defence. Ensuring fair trial for the accused is equally integral to the justice delivery system. The impugned order imbalances the statutory scheme by prioritizing expediency over fairness.
That the petitioner submits that Principle laid down in the following cases ignored by the Trial court. The petitioner had relied on: Pidika Sambaru vs State of Odisha, 04.03.2022 and Mahammad Ali Akbar @ Ali Umar vs State of Karnataka, 06.06.2022. These judgments emphasise that even at a later stage, recall can be permitted if the evidence sought is crucial for justice.
That the Trial Court failed to consider the specific reasons furnished by the petitioner indicating that certain material contradictions, omissions and inconsistencies surfaced only after the examination of subsequent prosecution witnesses. These aspects could not have been put to PW-4 earlier and, therefore, recalling PW-4 was not repetitive, but necessary to secure justice.
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NC: 2026:KHC-D:373 CRL.P No. 104748 of 2025 HC-KAR That the Trial Court erroneously presumed that the application lacked bona fides and was an attempt to delay proceedings. The petitioner had clearly identified specific and relevant questions that needed to be put to PW-4. The Court failed to examine the nature of the proposed cross- examination and thus committed a jurisdictional error.
7. Sri A.R.Patil, learned counsel for the petitioner reiterating the grounds urged in the petition contended that Madhab Chandra Pradhan's case does not contemplate the rejection of the application filed for the first time to recall the witness under Section 311 Cr.P.C.
8. He would invite the attention of the Court to Para 5 and 6 of the said judgment which reads as under:
"5. We have heard learned counsel for the petitioners, who would submit that Section 33 (5) does not operate as an absolute bar for recalling the child as a witness for re- examination. Learned counsel for the petitioners would argue that Section 33 (5) would also not come in the way of the Special Court's powers under Section 311 of the Cr.P.C to recall or re-examine any person who has already been examined. It would be apposite to reproduce Section 311 of the Cr.P.C before adverting to the facts of the present case. Section 311 of the Cr.P.C reads as under:-8-
NC: 2026:KHC-D:373 CRL.P No. 104748 of 2025 HC-KAR "311. Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-
examine any such person if his evidence appears to it to be essential to the just decision of the case..."
We are of the considered opinion that although Section 33 (5) would not act as an absolute bar to recall the victim for re-examination as a witness, each case must be looked at in the context of its individual facts and circumstances. Thus, the question which falls for our consideration in the present case is whether in the exercise of its powers under Section 311 of the Cr.P.C, the Special Court ought to have recalled the child/victim for re-examination as witness, keeping in mind the mandate under Section 33 (5) of the Act.
6. The principles which would guide the exercise of a Court's power under Section 311 of the Cr.P.C were succinctly summed up by this Court in State (NCT of Delhi) v. Shiv Kumar Yadav (2016) 2 SCC 402. It was laid down by this Court that first, the plea for recall of a witness under Section 311 must be bona fide and genuine. Secondly, -9- NC: 2026:KHC-D:373 CRL.P No. 104748 of 2025 HC-KAR applications for recall of a witness under Section 311 should not be allowed as a matter of course and the discretion given to the Court must be exercised judiciously, not arbitrarily."
9. He would therefore submit that the principles of law enunciated in Madhab Chandra Pradhan's case could not be applicable to the case on hand and learned trial Judge has mechanically dismissed the application resulting in miscarriage of justice and sought for allowing the petition.
10. Per contra, Smt.Kirthilata R.Patil, learned High Court Government Pleader supports the impugned order by contending that no person should be allowed to recall a witness who has been examined in toto without there being a valid reason. She would further contend that in the application filed by the accused, no reason whatsoever is forthcoming as to why PW4 (victim girl aged 8 years) is to be recalled for cross-examination and therefore, rejection of the application is just and proper.
11. Sri L.S.Sullad, learned counsel for respondent No.2- defacto complainant while adopting the arguments put forth on behalf of learned High Court Government Pleader would further contend that in a matter of this nature, especially when the
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NC: 2026:KHC-D:373 CRL.P No. 104748 of 2025 HC-KAR victim is of the 8 years old, repeatedly calling for the examination itself is not contemplated under the POCSO Act and POCSO Rules. Therefore, rejection is just and proper.
12. He would further contend that following the principles of law enunciated by the Hon'ble Apex Court in the case of Sakshi v. Union of India and others reported in (2004) 5 SCC 518 which has been rendered pre-POCSO stage in respect of a minor victim of a sexual offences, the Courts and the all persons in the legal fraternity are to be sensitized about the incident complained of and should act inconsonance with the principles of law enunciated and therefore, sought for dismissal of the petition.
13. Having heard the arguments of both sides, this Court perused the material on record meticulously.
14. On such perusal of the material on record, in the first place, the application filed by the accused is a bald application as referred to supra. No reason whatsoever is forthcoming as to why PW4 is to be recalled for further cross-examination.
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15. It is incumbent on the part of the person who seeks recall of a witness to assign valid and proper reasons seeking recall of a witness for cross-examination.
16. In the case on hand, it is not as if that the PW4 is not cross-examined. PW4 is cross-examined in extenso and the same has been recorded by the learned trial Judge. However, after examination of PW5, some answers are elicited in cross-examination of PW5 which is the basis for recalling of PW4 is the argument that is put forth on behalf of the petitioner/accused.
17. If that is so, then it is a matter of argument on behalf of the accused to appraise the trial Court as to the contradictions found in the oral testimony of PW4 and PW5. On that score, an 8 year old girl, who is a victim serious sexual offence, cannot be recalled for cross-examination. Further, no doubt in the case of Madhab Chandra Pradhan, Hon'ble Apex Court stated that repetitive recall is impermissible.
18. Sri A.R.Patil taking clue from the said observation of the Hon'ble Apex Court in Madhab Chandra Pradhan's case
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NC: 2026:KHC-D:373 CRL.P No. 104748 of 2025 HC-KAR supra, as referred to in para 5 and 6 would contend that in the case on hand after the closure of the evidence of PW4, for the first time she is being recalled for the first time. Therefore, the principles of law in Madhab's case has no application whatsoever and following the said judgment and rejection of the application is improper and sought for allowing the petition for the first time.
19. No doubt, in the case on hand, the application seeking recall of PW4 by resorting to 311 Cr.P.C. is for the first time after the closure of evidence of PW4. But as referred to supra, there is no reason whatsoever assigned which has been brought to the notice of the Court by filing written objections by the prosecution, the petitioner should have assigned proper reasons by filing a fresh application. Instead, he pursued further the very same application. Thus, rejection of the application is thus just and proper more so having regard to the fact that the victim girl is aged 8 years.
20. It is to be noted that psychologically also victim would be subjected to untold misery and torture, if the very same questions are repeated again and again. Rules and the
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NC: 2026:KHC-D:373 CRL.P No. 104748 of 2025 HC-KAR provisions of POCSO Act would envisage a situation that such repetitive questioning of the victim is to be avoided wherever it is possible.
21. Keeping the same in the background when the request of the petitioner is viewed, this Court is of the considered opinion that having completed the cross-examination on an earlier occasion, recall of PW4 in the absence of any reasons whatsoever, much less good reasons, and rejection of request is just and proper.
22. Hence, following order is passed:
ORDER Petition is dismissed.
Sd/-
(V.SRISHANANDA) JUDGE CLK/-CT-CMU LIST NO.: 2 SL NO.: 81