Essentiality Test for Re-Calling POCSO Witnesses: Fair Defence Prevails Over Counsel Lapses

1) Introduction

In Shri Krishna Mohan Das v. The State (Calcutta High Court, Circuit Bench at Port Blair), the revisionist/accused challenged an order dated 15.10.2025 of the Special Judge (POCSO), North and Middle Andaman, Mayabunder, in Special Case No. 11 of 2022. The trial court had refused the accused’s request to recall seven prosecution witnesses for re-cross-examination in a prosecution under Section 6/12 POCSO read with Sections 376/506 IPC and Section 66(E) IT Act.

The case had earlier resulted in conviction on 31.08.2022, which was set aside in appeal (CRA(B)/9/2022) on 09.04.2024, with a direction to examine the accused under Section 313 CrPC and then deliver a fresh judgment. After completion of the Section 313 examination, a newly appointed defence counsel sought re-cross of key witnesses, asserting that earlier cross-examination was inadequate.

The core issue was whether, in a POCSO trial where the law emphasises protection of vulnerable witnesses, the accused can nonetheless be permitted to recall witnesses for re-cross-examination when prior cross-examination appears materially deficient—especially where the deficiency is attributed to the earlier counsel.

2) Summary of the Judgment

The High Court allowed the revision, set aside the trial court’s order dated 15.10.2025, and directed the Special Judge (POCSO) to permit re-cross-examination of the identified prosecution witnesses, but strictly limited to the specific “points mentioned in the revisional application”.

While endorsing the general caution that victims/vulnerable witnesses in POCSO matters should not be recalled on flimsy grounds, the Court held that each case must be assessed on its own merits. On examining the record, the Court found the earlier cross-examination to be deficient and casual and concluded that denial of re-cross could impair the accused’s ability to present a real defence.

3) Analysis

A) Precedents Cited

The judgment refers to a principle attributed to the Hon'ble Supreme Court: that recall of victims/witnesses in POCSO matters should be avoided unless absolutely essential. However, the order does not name or quote any specific Supreme Court decision or other reported precedent.

Consequently, the High Court’s approach is best understood as applying a general Supreme Court caution (protecting POCSO witnesses from repeated court appearances and re-traumatisation) while simultaneously reaffirming that such caution is not absolute and must yield where recall is shown to be “absolutely essential” for a fair defence.

B) Legal Reasoning

1. Balancing witness protection with fair-trial rights: The Court accepted the trial judge’s concern that POCSO witnesses are vulnerable and should not be repeatedly summoned. Yet it emphasised that the accused’s right to defend with competent legal assistance cannot be overlooked.
2. Case-specific assessment (not a mechanical refusal): The High Court expressly stated that each case has to be judged on its own merits, signalling that “POCSO caution” is a starting presumption, not an automatic bar.
3. Scrutiny of the actual cross-examination on record: Crucially, the Court did not rely solely on the accused’s assertion of ineffective assistance. It independently reviewed the examination/cross-examination and found it cryptic, deficient, and casual. This factual appraisal converted a generic claim into a demonstrable risk of real prejudice.
4. “Essentiality” as the controlling standard: The Court held recall should be allowed because it was “absolutely essential” for proper defence. This frames the operative test as necessity tied to fairness—rather than convenience, change of counsel, or tactical delay.
5. Limiting the scope to prevent misuse: To prevent a fishing expedition or harassment, the Court limited re-cross to the specific points set out in the revisional application and directed that a certified copy be placed before the trial court for noting down those points. This is a procedural safeguard: recall is permitted, but tightly controlled.

C) Impact

• POCSO recall applications will likely turn on record-based prejudice: The decision signals that courts may allow recall where the record reveals meaningful inadequacy in cross-examination that can affect the defence, even in POCSO cases, provided necessity is demonstrated.
• Change of counsel is not enough—but can be relevant: The High Court did not treat “new counsel” as a standalone ground; it mattered because the Court found actual deficiency on record and potential prejudice to the accused.
• Encourages calibrated orders: The direction to allow re-cross only on specified points offers a template: protect vulnerable witnesses by restricting recall to defined, necessary areas rather than permitting open-ended re-cross.
• Reinforces supervisory correction in revision: The judgment illustrates that revisional jurisdiction can be used to correct trial-level refusals that may compromise the fairness of the trial, especially after an appellate remand requiring a fresh judgment.

4) Complex Concepts Simplified

Section 313 CrPC examination

A stage where the accused is given an opportunity to personally explain circumstances appearing in evidence against him. Here, the appellate court had remanded the matter specifically to ensure this requirement was fulfilled before a fresh judgment.

Recall / re-cross-examination of witnesses

Bringing a witness back to court after their testimony is recorded, so that further questions can be asked (here, by the defence). Courts are cautious because it can delay trials and, in POCSO cases, can cause additional hardship to victims.

“Filling up lacuna”

A common objection meaning a party is trying to repair gaps left in its case due to its own earlier failure. The High Court effectively distinguished improper “gap-filling” from a situation where limited recall is necessary to prevent unfairness.

Vulnerable witness protection in POCSO

POCSO proceedings are designed to reduce trauma to child victims. This informs judicial reluctance to repeated summoning, but it does not eliminate the need to ensure a fair opportunity to defend.

Revisional jurisdiction

A High Court’s power to correct certain errors or improprieties in orders of subordinate courts, especially where such orders may cause injustice.

5) Conclusion

The Calcutta High Court’s decision crystallises a practical rule for POCSO trials: recall of victims/witnesses should generally be avoided, but must be allowed when the court finds, on the record, that further cross-examination is absolutely essential to preserve the accused’s ability to mount a real and competent defence. By restricting re-cross to specified points, the Court also demonstrates how to reconcile child-witness protection with the integrity and fairness of the criminal trial.