Ankit vs State Of Uttarakhand

Pankaj Purohit, J

This application filed under Section 528 of the B.N.S.S. 2023 has been filed by applicant challenging the judgment and order dated 09.10.2025 passed by learned Additional Sessions Judge/FTSC, Rudrapur, District Udham Singh Nagar, in Special Sessions Trial No.366 of 2024 State Vs. Ankit, for the offences punishable under Sections 363, 366, 376 IPC and under Section 3/4 of the Protection of Children from Sexual Offences Act (POCSO), 2012, whereby, the application under Section 311 Cr.P.C. dated 03.09.2025 moved by the applicant has been rejected.

It has been submitted by learned counsel for the applicant that although PW1-prosecutrix was examined on 18.07.2024 and PW-2-father of prosecutrix was examined on 26.09.2024. But, on scrutiny of the evidences, it was found that certain question regarding the age of victim could not have been asked from the victim and her father in cross-examination, and therefore, an application under Section 311 Cr.P.C. was moved on 03.09.2025 with a prayer to recall these witnesses and to permit to cross-examine these two witnesses by learned counsel for the applicant-accused.

It is argued by learned counsel for the applicant that the case is of POCSO, and therefore, age of the victim in the said case is very crucial for just and proper decision of the case. Thus, the opportunity for recalling the witnesses and permitting the applicant to cross-examine them, cannot be denied by the learned Trial Court.

Per contra, learned State Counsel vehemently opposed the prayer made by learned counsel for applicant for recalling and permitting the applicant to cross-examine the abovementioned two witnesses stating that in Section 33(5) of the POCSO Act, it has been specifically provided that the minor victim (child) should not be called repeatedly before the Court. For ready reference, Section 33(5) of the POCSO Act is quoted herein below:-

"Section 33(5)- The Special Court shall ensure that the child is not called repeatedly to testify in the Court."

She further drawn the attention of this Court to the application under Section 311 Cr.P.C. moved by applicant and submitted that in the entire application, no specific question has been disclosed of which the cross-examine has to be carried out again after recalling the aforesaid two witnesses.

Having heard the learned counsel for the parties and having perused the impugned judgment and order dated 09.10.2025 as well as the application moved by applicant under Section 311 Cr.P.C., it is clear that no specific question has been disclosed by the applicant in the said application, therefore, the view which has been taken by the learned Trial Court appears to be sound and legal. But, in the interest of justice and to meet the ends of justice between the parties, this Court is of the view that applicant may be permitted to move a fresh application under Section 311 Cr.P.C. before the learned Trial Court disclosing therein the specific question to be put up to cross-examine the aforementioned witnesses within 10 days from today.

In view of the above, the present C528 application is allowed. The judgment and order dated 09.10.2025 passed by learned Additional Sessions Judge/FTSC, Rudrapur, District Udham Singh Nagar, in Special Sessions Trial No.366 of 2024 State Vs. Ankit, is accordingly set aside.

If an application under Section 311 Cr.P.C. is moved by the applicant within 10 days from today, the learned Trial Court shall pass a fresh order on that application in accordance with law, without influenced by this order.

Pending application, if any, also stands disposed of.