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2019 DIGILAW 1654 (RAJ)

Chhitarmal v. State of Rajasthan

2019-05-24

PANKAJ BHANDARI

body2019
JUDGMENT Pankaj Bhandari, J. - Petitioner has preferred this criminal miscellaneous petition aggrieved by order dated 16.03.2019 passed by Special Judge, (Protection of Child from Sexual Offences Act, 2012), whereby, the application filed by the petitioner for permitting cross-examination of the prosecutrix was rejected. 2. It is contended by counsel for the petitioner that he was busy on the date when the statement of prosecutrix was recorded and the Court thus, in the cross-examination mentioned "NILL" and that opportunity was given to cross-examine the prosecutrix. 3. It is contended that the statement of prosecutrix was recorded in the trial of accused-Rajendra, wherein, the prosecutrix has turned hostile. It is contended that valuable right of the petitioner to cross-examine the witness has been curtailed by the trial Court by rejecting the application filed by the petitioner under Section 311 Cr.P.C. 4. Learned counsel for the petitioner has placed reliance on P. Sanjeeva Rao Vs. The State of Andhra Pradesh, (2012) 7 SCC 56 , Dalveer Singh Vs. State of Rajasthan, (2013) CriLJ 3064 and Kamaldeep Vs. State of Rajasthan & Ors, (2015) 2 WLN(Raj) 425 . 5. I have considered the contentions, the statement of prosecutrix was recorded on 24.09.2018 and the Court made a note that opportunity was given to the accused but no crossexamination was done on behalf of the accused and thus the Court marked "NILL" in the cross-examination column. 6. This Court in " Dharmendra Suman Vs. State of Rajasthan, (2018) 4 RajLW 3473 (Raj.) " (S.B. Criminal Miscellaneous Second Bail N0.3297/2018) decided on 12.04.20185 has taken serious note of the child victim being returned by the Court and hence, directed the Registrar (Judicial) to circulate the order to the Sessions Judges and the Judges hearing the POCSO cases. Prosecutrix is a child, who has deposed against the petitioner. There is no justification whatsoever to call back the proseuctirx. The judgments referred by the counsel for the petitioner do not have any applicability to the facts of the case as the present case is one under the POCSO Act and provisions of the Act have to be given effect to. As per sub-Section 5 of the Section 33 of the Act of 2012, a child is not to be called repeatedly and as per Section 35 of the Act of 2012, statement of child witness has to be recorded within a period of 30 days. 7. As per sub-Section 5 of the Section 33 of the Act of 2012, a child is not to be called repeatedly and as per Section 35 of the Act of 2012, statement of child witness has to be recorded within a period of 30 days. 7. There is no error in the impugned order so as to invoke inherent powers. 8. The criminal miscellaneous petition is dismissed. Stay application also stands disposed.