Dismissed¶13

Shashipal v. State of U.P. and Another

Allahabad HC19 May 2025NA528/5532/2025

Case brief

AI extract

What is this about?

Allahabad High Court; Section 528 BNSS; quashing of order dated 27.09.2024; Special Sessions Trial No. 53 of 2018; Case Crime No. 1318 of 2017; Sections 363, 366, 376, 506 IPC; Sections 3/4 POCSO Act; Section 311 Cr.P.C.; recall and cross-examination of PW-2 victim; denial of opportunity to cross-examine; fair trial; judicial delay; victim dignity; re-traumatization; dismissal; Vinod Diwakar, J.

What did the court decide?

On perusal of the impugned order, the trial court had given sufficient opportunity to cross-examine PW-2, which the applicant failed to avail without justifiable cause; even his counsel, though present in the court premises, was called to cross-examine the witness but intentionally avoided doing so with the intention to delay the trial. ¶10

Shashipal Vs State of U.P. and Another — Child Sexual Offences (POCSO) | Allahabad HC (2025)

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the order dated 27.09.2024 passed by the Additional Sessions Judge/Special Judge, POCSO Court, Ghazipur, rejecting the applicant's application under Section 311 Cr.P.C. for recall and cross-examination of PW-2 (victim), warrants interference/quashing under Section 528 BNSS.

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Court's answer

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Ratio / Principle

The right to cross-examine is a fundamental component of fair trial but cannot be exercised at the cost of judicial delay and the victim's dignity, particularly where the party seeking recall has not shown diligence or bona fide intention; the trial court having recorded sufficient reasons for rejecting the Section 311 Cr.P.C. application, it committed no illegality or irregularity warranting interference.

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Key takeaways

After perusing the impugned order and hearing both sides, the Court found no material irregularity or procedural flaw in the impugned order; the petition was held devoid of merit and dismissed.ratio¶13

Detailed headnote1 paragraphs

Application under Section 528 BNSS seeking quashing of the order dated 27.09.2024 passed by the Additional Sessions Judge/Special Judge, POCSO Court, Ghazipur, in Special Sessions Trial No. 53 of 2018 (State v. Shashipal), arising out of Case Crime No. 1318 of 2017 (Sections 363, 366, 376, 506 IPC; Sections 3/4 POCSO Act), whereby the applicant's application under Section 311 Cr.P.C. for recall and cross-examination of PW-2/victim was rejected. Held: the trial court had afforded sufficient opportunity to cross-examine PW-2, which the applicant failed to avail without justifiable cause; his counsel, though present in the court premises, intentionally avoided cross-examination to delay the trial, the charge-sheet having lain undisposed since 2017. While the right to cross-examine is a fundamental component of fair trial, it cannot be exercised at the cost of judicial delay and the victim's dignity where the applicant for recall has shown neither diligence nor bona fide intention. Finding no illegality, irregularity or procedural flaw in the impugned order, the High Court dismissed the application.

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Neutral Citation No. - 2025:AHC:94123

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Court No. - 76

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Case :- APPLICATION U/S 528 BNSS No. - 5532 of 2025

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Applicant :- Shashipal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Harindra Prasad Counsel for Opposite Party :- G.A.

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Hon'ble Vinod Diwakar,J.

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Heard learned counsel for the applicant, learned A.G.A. for the State, and perused the record.

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The present application under Section 528 of BNSS has been filed seeking quashing of the order dated 27.09.2024, passed by the Additional Sessions Judge/Special Judge, POCSO Court, Ghazipur, in Special Sessions Trial No. 53 of 2018 (State v. Shashipal), arising out of Case Crime No. 1318 of 2017, under Sections 363, 366, 376, 506 of IPC and Sections 3/4 of the POCSO Act, registered at Police Station Khanpur, District Ghazipur, whereby the application under Section 311 Cr.P.C. (Paper No. 69B) filed by the applicant for recall and cross-examination of PW-2/victim was rejected.

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Learned counsel for the applicant submits that the applicant was not afforded a fair opportunity to cross-examine PW-2, who is the victim in the present case. It is argued that the victim was examined in chief, but due to unavoidable circumstances, the applicant's counsel could not cross-examine her on the date fixed for cross-examination. It is further submitted that denial of such an opportunity would result in irreparable prejudice to the defence, particularly when the cross-examination is essential for a fair adjudication of the matter.

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Per contra, learned A.G.A. opposed the application and submitted that the trial court had granted sufficient opportunity to the applicant for cross-examination. However, the applicant repeatedly failed to avail the said opportunity despite the fact that the learned counsel for the applicant was present in the Court. He further states that due to non-cooperation from the defence counsel, the victim/prosecution witness could not be crossexamined. It is further pointed out that the victim has now been married and settled, therefore, repeated summons to her for reappearance would amount to harassment and re-traumatization, especially in a matter involving sexual offences under the POCSO Act.

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Upon careful perusal of the impugned order dated 27.09.2024, it is evident that the trial court has given the sufficient opportunity to cross-examine the prosecution witness (PW-2), which the applicant failed to avail without any justifiable cause. Even, learned counsel for the applicant, who was present in the court premises, was called by the court to cross examine the witness, but he intentionally avoided the cross examination with the intention to delay the trial. It has also been recorded by the trial court, the charge-sheet was filed in 2017, and since then no effective progress has been taken place. Therefore, the direction for reappearance of the witness may further delay the trial.

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The right to cross-examine is a fundamental component of fair trial; however, such right cannot be exercised at the cost of judicial delay and victim's dignity, particularly when the party seeking recall has not shown diligence or bonafide intention. The trial court, having recorded sufficient reasons for rejecting the application under Section 311 Cr.P.C., does not appear to have

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committed any illegality or irregularity warranting interference by this Court.

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On perusal of the impugned order, and after hearing the learned counsel of both the parties, I do not find any material irregularity and procedural flaw in the impugned order. Therefore, the petition is devoid of merit, and thus dismissed.

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Order Date :- 20.5.2025 Imtiyaz

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Vinod Diwakar, J.

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Digitally signed by :- IMTIYAZ AHMAD High Court of Judicature at Allahabad

Shashipal v. State of U.P. and Another

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Shashipal v. State of U.P. and Another

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