POPTYA ALIAS POPAT SHAHADEV BORUDEversusTHE STATE OF MAHARASHTRA AND ANOTHER

2026:BHC-AUG:42804
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                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     BENCH AT AURANGABAD

                          922 CRIMINAL WRIT PETITION NO. 1159 OF 2026

               Poptya @ Popat Shahadev Borude
               Age: 25 Years, Ocew: Nil,
               R/o: Chede-chandgaon, Tq: Shevgaon,
               Dist: Ahmednagar.                                         ...Petitioner

                     VERSUS

               The State Of Maharashtra And Another                      ...Respondents

                                                   ...
               Mr. Ajinkya Joshi h/f Mr. Sharad V. Natu - Advocate for the Petitioner
               Mr. D. J. Patil - APP for the State
                                                   …

                                         CORAM :      HITEN S. VENEGAVKAR, J.
                                         DATED :      10TH SEPTEMBER, 2026

               FINAL ORDER : -

               1.           Heard the learned Advocate for the Petitioner and the

               learned APP for the State. By consent of the parties, the Petition is taken

               up for final disposal.



               2.           The petitioner, who is accused in Special Case No. 153 of

               2024, pending before the learned Special Judge (POCSO), Ahmednagar,

               has invoked the supervisory jurisdiction of this Court under Article 227

               of the Constitution of India, challenging the impugned order dated 21 st

               July 2026, passed by the learned Special Judge, Ahmednagar, below

               Exhibit 44 in Special Case No. 153 of 2024. By the impugned order, the

               learned Special Judge has permitted the prosecution to re-examine
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prosecution witness no. 4, restricting such re-examination to the

questions concerning the alleged marriage of the victim. The petition

specifically seeks quashing of the said order.



3.           The record indicates that during cross-examination of

prosecution witness no. 4, the learned Public Prosecutor sought

permission to put leading questions to the witness on the ground that he

was not deposing in accordance with his earlier statement. The defense

thereafter cross-examined the witness. In the course of such cross-

examination, certain evidence came to be elicited from PW4 concerning

the alleged marriage of the victim. Thereafter, on very same day, the

prosecution moved Exhibit 44 seeking permission to further examine the

same witness.



4.           The learned Special Judge, after hearing both the sides,

noticed that the statement regarding victim's marriage had emerged

during cross-examination and accordingly permitted the prosecution to

re-examine PW4 on that point. The order itself records that the

prosecution desired clarification as to how PW4 acquired knowledge

regarding the alleged marriage of the victim. The operative reasoning of

the trial court is that since the new fact regarding the marriage was

introduced    during   cross-examination,      re-examination   would    be

permitted solely in relation to that aspect.
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5.           The learned counsel appearing for the petitioner submits

that Exhibit 44 itself contains no adequate reasons, and the prosecution

cannot be permitted to re-examine its witnesses merely because an

answer favorable to the defense has emerged during the cross-

examination. It is further submitted that the fact concerning the victim's

marriage is already before the court through the evidence of prosecution

witness no. 3, and therefore the exercise is unnecessary and amounts to

permitting the prosecution to fill up lacunae in its evidence. This is

substantially also the foundation of the challenge in the petition.



6.           There is no dispute that the power to recall, or further

examine a witness cannot be exercised as a matter of course. Such

power cannot be employed merely to afford an opportunity to the party

to repair an omission in its evidence, or to reopen a completed line of

examination, because some answer subsequently appears inconvenient.

At the same time, the power of the court to permit a limited further

examination, cannot be treated as altogether excluded where a new

matter emerges during cross-examination, and an explanation in respect

thereof is considered necessary for a proper appreciation of the

evidence.   What is material is the purpose for which the witness is

sought to be re-examined/further examined, the stage at which such

request is made, the nature of the matter sought to be clarified, and the
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prejudice, if any, likely to be caused to the opposite party. In the facts of

the present case, the prosecution has not sought to introduce altogether

independent piece of evidence after completion of the trial. The

application was moved on the same day, after the disputed statement

emerged during the cross-examination of PW4. More importantly, the

learned Special Judge has not granted an unrestricted opportunity to the

prosecution. The permission has been confined to the question

concerning the alleged marriage of the victim.



7.           The submission that another prosecution witness has

already deposed about the marriage of the victim, would not by itself

render any clarification from PW4 impermissible. PW3 has deposed

regarding her own relationship and proximity to the family of the victim.

The evidentiary basis of the source of knowledge of PW4, is necessarily

distinct. If PW4 has himself introduced a particular fact in cross-

examination, the circumstance that another witness has also spoken on

the same subject does not necessarily answer how PW4 claims

knowledge of that fact.



8.           However, the apprehension expressed on behalf of the

petitioner cannot be said to be wholly unfounded. Merely because the

prosecution is permitted to re-examine PW4, the opportunity cannot be

converted or utilized by the prosecution for carrying out fresh cross-
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examination of PW4, who is a prosecution witness, or into a device to

introduce material which was otherwise omitted from the prosecution

evidence. The expression ‘re-examination’ has a definite forensic

purpose. It is intended principally to explain matters arising out of cross-

examination and cannot ordinarily be expanded into a second

examination-in-chief.



9.           In that view of the matter, this Court finds no reason to

completely set aside the order below Exhibit 44. At the same time, in

order to safeguard the right of the accused and to ensure that the

permission granted by the learned Special Judge does not travel beyond

the legitimate scope of re-examination, the impugned order requires to

be clarified and suitably restricted.



10.          Accordingly, the prosecution shall be permitted to re-

examine prosecution witness no. 4 only with regard to the statement

made by him in cross-examination concerning the alleged marriage of

the victim, and in particular, the source or basis of the knowledge in that

regard.   The   prosecution    shall    not,   under   the   cover of   such

re-examination, be permitted to reopen the examination-in-chief of PW4

and/or to introduce an altogether independent version of the incident,

repeat matters already forming part of his examination-in-chief, and/or

put questions intended merely to contradict, impeach or substitute the
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answers already elicited in his cross-examination. Learned Special Judge

shall regulate the questions accordingly.



11.          Here,    however,    in   the   course      of   such   limited

re-examination, if any new matter is introduced which was not part of

the earlier evidence of PW4, the petitioner-accused shall be afforded an

adequate opportunity to further cross-examine PW4, strictly confined to

such new matter. The right of the accused in that regard shall remain

unaffected. The exercise of re-examination shall, as far as applicable, be

completed on the same day and shall not be permitted to result in

avoidable adjournments or delay in the trial, particularly having regard

to the contention of the petitioner that the petitioner is in custody since

2024.



12.          It is clarified that this Court has not expressed any opinion

on the truthfulness, reliability or evidentiary value of the statement of

PW4 concerning the alleged marriage of the victim. The same shall be

independently appreciated by the learned Special Judge at the

appropriate stage along with the rest of the evidence.



13.          Subject to the aforesaid clarification and restriction, the

order dated 21st July 2026 passed below Exhibit 44 in Special Case

No.153 of 2024 does not warrant interference in exercise of supervisory

jurisdiction of this Court under Article 227 of the Constitution of India.
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                             14.          The Criminal Writ Petition accordingly stands disposed of

                             subject to the directions contained herein above. All contentions of all

                             the parties are kept specifically open on merits.



                                                                     [ HITEN S. VENEGAVKAR ]
                                                                              JUDGE

                             SG Punde




Signed by: Sandeep Gulabrao Punde
Designation: PS To Honourable Judge
Date: 21/09/2026 18:56:54