Dismissed¶17

Rajesh and Ors. v. State Govt. of NCT of Delhi and Anr.

Delhi HC7 Feb 2026CRL.M.C./469/2026

Case brief

AI extract

What is this about?

Keywords: Section 348 BNSS; Section 311 Cr.P.C.; recall of witness; further cross-examination; re-cross after change of defence counsel; vakalatnama; Section 33(5) POCSO Act; Section 10 POCSO; child witness; repeated testimony; trauma of prosecutrix; support-person; exhaustive cross-examination; judicial restraint; discretionary power; Trial Court order dated 10.11.2025; quashing petition; CRL.M.C.; High Court of Delhi. Relevant to advocates opposing or supporting applications to recall a POCSO child victim for fresh cross-examination solely because defence counsel changed.

What did the court decide?

Such discretionary power has to be exercised with requisite caution and judicial restraint, and not in an arbitrary and mechanical manner. ¶10

Rajesh and Ors. Vs State Govt. of NCT of Delhi… — Child Sexual Offences (POCSO) | Delhi HC (2026)

What the court decided

AI extract

Outcome

Dismissed

¶17

Issue for consideration

Whether the prosecutrix (PW-1) should be recalled for further cross-examination on account of the change of defence counsel, notwithstanding that she had already been exhaustively cross-examined, on the plea that certain material questions essential for just adjudication were not put to her. +1 more

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Court's answer

Mere change in counsel does not give the new counsel any automatic handle to seek further cross-examination, particularly where the existing cross-examination was neither absent nor cursory but comprehensive.

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Ratio / Principle

Such discretionary power has to be exercised with requisite caution and judicial restraint, and not in an arbitrary and mechanical manner.

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Key takeaways

The power given under Section 348 BNSS is wide enough, and the Court can always direct examination or recall of any witness whose evidence appears essential to the just decision of the case.obiter¶9
A prosecutrix in a case of the present nature cannot be permitted to re-live the trauma again and again; Section 33(5) of the POCSO Act directs that the Special Court shall ensure the child is not called repeatedly to testify in the Court.ratio¶14
The abovesaid provision (Section 33(5) POCSO safeguard) is not absolute; in a given case the Court may still permit such a witness to be recalled, depending on the peculiar facts, there being no straitjacket or rigid formula.

Detailed headnote1 paragraphs

High Court of Delhi (Hon'ble Mr. Justice Manoj Jain, oral judgment), 07.02.2026 — CRL.M.C. 469/2026 dismissed. Petitioners (Rajesh and Ors.) sought quashing of the learned Trial Court's order dated 10.11.2025 refusing their application under Section 348 BNSS (corresponding Section 311 Cr.P.C.) to recall the prosecutrix (PW-1) — a child victim of sexual assault charged under Section 10 POCSO Act — for further cross-examination after a change of defence counsel. Held: (i) the Section 348 BNSS power is wide but must be exercised with caution and judicial restraint, not arbitrarily or mechanically; (ii) a mere change of counsel confers no automatic entitlement to renewed questioning where the earlier cross-examination (conducted on behalf of all accused, running beyond 12 pages, with certain questions disallowed as irrelevant and insensitive) was comprehensive; (iii) Section 33(5) POCSO obliges the Special Court to ensure the child is not called repeatedly to testify — a safeguard that, though not absolute and admitting fact-dependent exceptions without any straitjacket formula, here rendered renewed summons unjustifiable from any angle, since the prosecutrix had broken down repeatedly even during her examination-in-chief. Petition found devoid of merit and dismissed.

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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% Date of Decision: 7^th February, 2026

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- CRL.M.C. 469/2026& CRL.M.A. 1875/2026 & CRL.M.A. 1876/2026 RAJESH AND ORS .....Petitioner

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Through: Mr. Girish Gupta with Ms. Sidhi Sharma, Advocates.

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versus

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STATE GOVT. OF NCT OF DELHI AND ANR. .....Respondent Through: Mr. Raj Kumar, APP with SI Sunil Chauhan.

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CORAM:

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HON’BLE MR. JUSTICE MANOJ JAIN J U D G M E N T (oral)

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Petitioners seek quashing of order dated 10.11.2025 whereby their request to recall prosecutrix for further cross-examination has not been acceded to.

¶11

The alleged incident took place on 04.08.2023 and after comprehensive investigation and arrest of the accused persons, charge-sheet was filed on 19.09.2023.

¶12

Since it was a case of sexual assault upon a child and, inter alia , involving Section 10 of Protection of Children from Sexual Offences (POCSO) Act, 2012 the case was committed to Court of Sessions.

¶13

Prosecutrix (PW-1) entered into witness box on 05.02.2024 and same day, her examination-in-chief was recorded. Her cross examination was deferred for 14.03.2024.

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Signature Not Verified

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CRL.M.C. 469/2026

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Signed By:SONIA THAPLIYAL Signing Da te:1 0.02.2026 10:18:17

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On 14.03.2024, the then learned defence counsel cross-examined her at length on behalf of all the accused persons. During course of the arguments today, copy of her deposition was shown which indicates that such cross-examination of prosecutrix was exhaustive and elaborate one, running into more than 12 pages.

¶19

Thereafter, there was change in counsel and the new counsel filed his vakalatnama in the year 2024 itself and cross-examination of the other witnesses was conducted by such new counsel only.

¶20

An application was filed before the learned Trial Court under Section 348 BNSS (corresponding Section 311 Cr.P.C.) with prayer to recall prosecutrix for further cross-examination and the grievance in the present petition is with respect to the dismissal of such application.

¶21

According to learned counsel for petitioner, though there was, earlier, detailed cross-examination conducted by the then defence counsel, certain material and relevant question(s), which go to the root of the matter and which are essential for just and fair adjudication of the matter, were not put to the victim and, since the trial is, still, going on, no prejudice would be caused to anyone if PW-1 is directed to be recalled for further cross-examination. It is also stated that such cross-examination would not last for more than five minutes. Though, in the present petition, it has not been elucidated and elaborated as to what were those crucial question(s) which were essential for just decision and which could not be put, it was, verbally, apprised that there would be few questions and suggestions, concerning the presence of the brother of the prosecutrix.

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Signature Not Verified

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CRL.M.C. 469/2026

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Signed By:SONIA THAPLIYAL Signing Da te:1 0.02.2026 10:18:17

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Undoubtedly, the power given in under Section 348 BNSS is wide enough and the Court can always direct examination or recall of any witness, if the evidence of such witness appears to be essential to the just decision of the case.

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However, at the same time, such discretionary power has to be exercised with requisite caution and judicial restraint, and not in an arbitrary and mechanical manner.

¶28

The examination-in-chief of the prosecutrix, who is alleged to be victim of sexual assault at the hands of multiple persons, would indicate that when her statement was being recorded, she broke-down several times and started weeping in middle of her statement, while narrating the incident. She was duly counseled by her support-person and, therefore, she was able to regain her calm and composure and was able to conclude her examination-in-chief on 05.02.2024.

¶29

On 14.03.2024, she was cross-examined at length by her defence counsel and her cross, which started in pre-lunch session spread over post-lunch also. Evidently, during such cross-examination, some questions were disallowed, being irrelevant and insensitive in nature.

¶30

Mere change in the counsel would not give any automatic handle to the new counsel to seek further cross-examination, particularly, when it is not a case where there was no cross-examination at all or examination was a cursory one. On the contrary, the cross-examination, herein seems to be comprehensive enough.

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Signature Not Verified

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CRL.M.C. 469/2026

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Signed By:SONIA THAPLIYAL Signing Da te:1 0.02.2026 10:18:17

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Any prosecutrix in a case of present nature cannot be permitted to re-live trauma, again and again, particularly, when Section 33(5) of POCSO Act also specifies that the Special Court would ensure that the child is not called, repeatedly, to testify in the Court.

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Undoubtedly, the abovesaid provision may not be absolute in nature and in a given case, the Court may still permit any such witness to be recalled. It, however, depends on the peculiar facts of the given case and there cannot be any straitjacket or rigid formula in this regard.

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The manner in which she has already been comprehensively cross-examined, asking her to enter into witness box would make her undergo the ordeal again, which would not be justifiable from any angle whatsoever.

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