Asad @ Pappi vs State Of Uttarakhand & Another

Manoj K. Tiwari, J

By means of this Criminal Miscellaneous Application under Section 482 Cr.P.C., applicant has challenged the orders dated 11.09.2018 and 19.01.2019 passed by learned trial Court i.e. Special Judge, POCSO, Rudrapur, Udham Singh Nagar in Special Sessions Trial No. 406 of 2018.

On 12.01.2018, respondent no. 2 lodged an F.I.R. against the applicant under Section 376, 354 (D), 506 I.P.C.; Section 3/4 of POCSO Act and Section 67 of Information Technology Act. The police investigated the matter and filed the charge-sheet under Section 366, 376(2), 328, 354(d), 506 I.P.C. and Section 5/6 of POCSO Act against the applicant. Thereafter, learned Special Judge took cognizance in the matter and summoned the applicant.

Applicant is aggrieved by the order dated 11.09.2018 whereby his opportunity to cross examine the prosecutrix was closed. Thereafter, applicant moved an application under Section 311 Cr.P.C., which too has been rejected by learned trial Court vide order dated 19.01.2019.

Learned counsel for the applicant submits that after framing of charge, trial commenced and 21.06.2018 was fixed for evidence, on which date, Presiding Officer was on leave, although, applicant as well as the victim both were present and Vakalatnama of Mr. Ashok Kumar, learned counsel engaged by the applicant was filed before the trial Court. Thereafter, on three successive dates i.e. 12.07.2018, 10.08.2018 & 21.08.2018 applicant appeared before learned trial Court; however, the victim did not appear. He further submits that on 11.09.2018, the victim as well as applicant both were present before learned trial Court, but, counsel for the applicant, who comes from Rampur (U.P.) was not present, therefore, a junior counsel sought adjournment on the ground that it is not possible for him to cross examine the victim. Learned trial Court, therefore, closed the opportunity of defence for cross examine the victim vide order dated 11.09.2019. The applicant, thereafter, moved an application under Section 311 Cr.P.C. seeking recall, which too has been rejected by learned trial Court vide order dated 19.01.2019. Thus, feeling aggrieved, applicant has approached this Court.

Heard learned counsel for the parties and perused the record.

Learned trial Court rejected the request made on behalf of the applicant for adjournment on 11.09.2018 in view of the provision contained under Section 33 sub-Section (5) of POCSO Act, 2012 and the application under Section 311 Cr.P.C. too was rejected on the ground that summoning the victim repeatedly in Court would adversely affect her studies.

This Court does not find any illegality in the view taken by learned trial Court. However, having regard to the fact that defence could not cross examine the victim due to non availability of his counsel at Rudrapur on 11.09.2018 and also in the interest of justice, it is desirable that the applicant be given one last opportunity to cross examine the victim, subject to payment of cost.

Accordingly, this criminal miscellaneous application is disposed of with a direction to the learned Special Judge, POCSO Act, Rudrapur, District Udham Singh Nagar to grant one last opportunity to the applicant subject to payment of cost of Rs.10,000/-which shall be paid to the victim, to cross examine the victim by fixing a date convenient to the victim. Learned trial Court will ensure that no adjournment is given to any of the parties on the date so fixed by the trial Court.