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2015 DIGILAW 540 (UTT)

YASEEN v. STATE OF UTTARAKHAND

2015-11-20

ALOK SINGH

body2015
JUDGMENT : Hon’ble Alok Singh, J. (Oral) Present revision is preferred assailing the order dated 01.10.2015, passed by the learned Special Judge, POCSO Rudrapur, whereby right to cross examination of PW5 was closed and application moved by the Advocate for the accused to recall PW5 for the cross examination was dismissed. 2. Undisputedly, Session Trial No. 90 of 2015, State Vs. Yaseen, under Sections 366, 376 and 3/6 POCSO Act, Police Station Jaspur, District Udham Singh Nagar was listed before the Special Judge POCSO, Rudrapur for prosecution evidence on 29.09.2015; on 29.09.2015 trial was adjourned for 08.10.2015 for recording of the statement of PW5; on 30.09.2015, Smt. Saroj Kambhoj, S.I., Police Station Rudrapur appeared before the learned Judge and requested the learned Judge since, she would be on long leave, therefore, Session Trial No. 90 of 2015, which was adjourned for 08.10.2015, be pre-poned for 01.10.2015 and her statement may be recorded on 01.10.2015. This was stated before learned Trial Judge, since she would be appearing in another trial on 01.10.2015, therefore, she will record her statement in the present trial too on 01.10.2015. Copy of the application moved by the S.I. PW5 through the pubic prosecutor was not supplied to the counsel for the accused; on 30.09.2015, file of Session Trial No. 90 of 105 was recalled from the office and trial was directed to be pre-poned for 01.10.2015 with the direction that counsel for the accused would be informed for the date fixed; on 01.10.2015, accused was not produced before the Court, since, police force was busy due to tour of Hon’ble the Chief Minister; trial was taken up on 01.10.2015 and statement of PW5 were recorded, however, counsel for the accused requested the court to adjourn the case for the cross examination of PW5, since, accused was not produced in the court and he was not heard on the question of pre-ponement of the case; request of the counsel for the adjournment was turned down; right of cross examination of PW5 was closed; request to re-call PW5 for cross examination was also turned down; Feeling aggrieved, present revision has been filed. 3. I have heard Mr. Vikas Kumar Guglani, learned counsel for the revisionist, Mr. Hari Om Bhakuni, A.G.A. for the State and have carefully perused the record. 4. Vide order dated 16.11.2015 comments of the Presiding Officer was called. 3. I have heard Mr. Vikas Kumar Guglani, learned counsel for the revisionist, Mr. Hari Om Bhakuni, A.G.A. for the State and have carefully perused the record. 4. Vide order dated 16.11.2015 comments of the Presiding Officer was called. It is admitted by the Presiding Officer that trial was fixed initially for 29.09.2015 and trial was adjourned for 08.10.2015 for recording of the statement of PW5; on the application of the prosecutor moved on 30.09.2015, at the back of counsel for the accused and without supplying copy of the application to him, file was called from the office and case was directed to be pre-poned for 01.10.2015. It is also admitted by the Presiding Officer that on 01.10.2015, accused was not brought from the jail and was not produced before the Court. 5. In my humble opinion, if trial was adjourned for 08.10.2015 for recording of the statement of PW5, ordinarily, trial ought not to have been pre-poned on the application of the Prosecutor, that too without supplying the copy of the application and without hearing the counsel for the accused. In my further opinion, if trial was directed to be pre-poned for 01.10.2015 ex-party, and on 01.10.2015, accused was not produced before the Trial Court, counsel for the accused should have not been presurised to cross examine the witness, without instructions from the accused. 6. In view of the above, revision succeeds and is hereby allowed. Impugned order dated 01.10.2015 is hereby set aside. PW5 is recalled for the cross examination. Learned Trial Court shall fix the date for cross examination of PW5 and on the date fixed PW5 shall be cross examined and no further date shall be fixed for the cross examination of PW5. 7. Let copy of this order be communicated to the learned Trial Judge within 24 hrs.