Sikandar Jain Vs State of Chhattisgarh

1. By way of instant petition under Section 528 of the Bhartiya Nagarika Suraksha Sanhita, 2023 ( for short, the B.N.S.S. ), the Applicant intend to challenge the order dated 26.06.2024 passed by learned Additional Sessions Judge, First Fast Track Special Court, POCSO, Raipur (C.G.), in Special Case No. 192/2023 whereby the learned Trial Court has rejected the application fled by the Applicant under Section 311 of i the Code of Criminal Procedure for recalling of witness/prosecutrix (PW-1) with respect to age.

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2. Learned counsel for the Applicant submits that victim was examined before trial Court on 06.02.2024, however at the time of the crossexamination of the witness/prosecutrix(PW-1) by the erstwhile defence

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counsel, some important question qua age and caste were left out to be asked thereby seriously damaging the defence of the applicant. Therefore, the Applicant has preferred an application on 16.04.2024 under Section 311 of CrPC before the Trial Court. However the learned Trial Court did not give any opportunity for cross-examination and rejected the application preferred by the present Applicant under Section 311 of the Cr.P.C.

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3. Learned Counsel for Applicant further submits that age is an important consideration in a POCSO case for the prosecution as well as for defense. Learned counsel for the Applicant submits that a further opportunity to re-examine the witness empowered under Section 311 CrPC, 1973 ought to have been aforded by the learned Trial Court, in f order to protect the applicant’s fundamental right of fair trial guaranteed under Article 21 of the Constitution of India. Thus, he prays that she needs to be re-examined as she could not be cross-examined with respect to her age and caste.

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4. Learned State Counsel opposing the submission of counsel for the Applicant would submit that victim who is sought to be recalled for reexamination, was already examined and cross-examined extensively by counsel for the defence. There is no suf Ï cient ground to recall the aforesaid witness. As per Section 33(5) of POCSO Act, the victim may not be called to come to the Court unnecessarily without cause. Thus the learned trial court has rightly rejected the said application for recalling of the prosecutrix witness (PW-1).

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5. I have heard learned counsel for both the parties at length and perused the order of the trial Court with utmost circumspection.

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6. Hon’ble Supreme Court in the matter of Natasha Singh Vs. CBI (State) reported in 2013 AIR SCW 3554 has held in para 9 as under:-

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“Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right.”

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7. It is observed by the above discussion, right to cross-examination is a part of right to fair which every person has in the spirit of right to life and personal liberty.

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8. It is pertinent to mention herein that charges were framed under Section 363, 366, 376 and 376D of IPC, Section 4(1) and 6 of POCSO Act and Section 3(2)(v) of SC/St (Prevention of Atrocities) Act, 1989.

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9. The vital questions for the aforesaid ofences are, whether on the date f of incident, the prosecutrix was minor or not, and whether the prosecutrix belongs to SC/ST caste or not.

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10. It is true that Section 33(5) of POCSO Act provides that the Special Court shall ensure that the child is not called repeatedly to testify in the court. However, no any question was asked to verify the fact that prosecutrix was minor at the time of incident and she belongs to which caste.

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11. Perusal of the deposition of prosecutrix/victim (PW-1) dated 06.02.2024, would show that no question was asked with regard to age and caste of the prosecutrix.

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12. In the result, I find some merit in this petition and accordingly, the same stands allowed for re-examination of the prosecutrix/victim (PW-1) only with respect to age and caste.

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13. The learned Trial Court shall afford a change to the applicant to crossexamine the prosecutrix (PW-1). The petitioner shall bear the expenses of the witness (PW-1) i.e. Rs. 2000/- and the Trial Court is free to impose conditions as it thinks fit. Accordingly, the impugned order dated 26.06.2024 is hereby set aside.

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14. Needless to say it is expected that apart from age and caste, no any other question is allowed to ask and learned counsel for petitioner shall not repeat any question which has already been put to the witness in their previous cross-examination. Further more, no adjournment will be sought by him on any ground whatsoever. It is further clarified that in case for any reason if witness is not available for the purpose of further cross-examination, her testimony shall be read in evidence as it is.

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15. With these directions, the petition stands partly allowed and disposed of.

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Sd/-

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( Arvind Kumar Verma ) Judge

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Jyoti

Sikandar Jain v. State of Chhattisgarh

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Sikandar Jain v. State of Chhattisgarh

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