Amit @ Biban Choudhary vs State Of Madhya Pradesh

Rajeev Kumar Dubey, J

This petition has been filed under Section 482 of Cr.P.C. against the order dated 13/06/2022 passed in S.C.No.384/2021 whereby learned 13th Additional Sessions Judge/Exclusive Special Judge, POCSO Act District-Bhopal rejected the applicant's application filed under Section 311 of Cr.P.C. for recalling the prosecution witness/prosecutrix (PW-1) for cross-examination.

Brief facts of the case which are relevant to the disposal of this petition are that applicant is facing trial before 13th Additional Sessions Judge/Exclusive Special Judge, POCSO Act District-Bhopal in SC No.384/2021 for the offence punishable under Sections 302, 201 of the IPC and Section 11/12 of POCSO Act and Section 67-B of IT Act. During trial of the case, on 13/3/2019 applicant/accused filed an application before the trial court under Section 311 of CrPC averring that on 7/3/2018 prosecutrix (PW-1) appeared before the trial Court for recording her statement. On the said date counsel of the applicant did not appear before the trial Court, due to which the applicant could not cross examine the witness, so the applicant should be given an opportunity to cross examine the prosecution witness/prosecutrix (PW-1). Learned trial court vide order dated 13/6/2022 rejected the said application. Being aggrieved by the order, the applicant filed this petition.

Learned counsel for the State opposed the prayer.

It appears from the record that on 07/03/2018 prosecutrix (PW-1) had appeared in the court to give evidence but the counsel for the applicant did not appear in the Court for cross-examining the witness, consequently learned trial Court closed the right of the applicant to cross-examine the witness. But the accused cannot be made to suffer for the mistake of his counsel. If the counsel for the accused did not appear in the Court, the Court should have at least given an opportunity to the applicant to cross-examine the witness. But the trial court did not do so which is improper. Due to this, the applicant has been deprived of his important right to cross-examine the witness.

So considering the facts and circumstances of the case, in the interest of justice, the petition is allowed and the impugned order dated 13/6/2022 passed by 13th Additional Sessions Judge/Exclusive Special Judge, POCSO Act District-Bhopal in S.C.No.384/2021 is set aside and the Trial Court is directed to grant one opportunity to the applicant to cross-examine the prosecutrix (PW-1).

It is made clear that if applicant fails to cross examine (PW/1), on the date fixed for the same by the trial court, without any sufficient reason, the trial Court shall not be bound to give any further adjournment for cross-examination of prosecutrix (PW/1).

With the aforesaid direction, the petition stands disposed of.