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Gujarat High Court · body

2019 DIGILAW 893 (GUJ)

Jignesh Pithabhai Maru v. State of Gujarat

2019-10-11

B.N.KARIA

body2019
ORDER : B.N. Karia, J. 1. By means of filing the present Criminal Revision Application under Section 397 read with Section 482 of the Code of Criminal Procedure, 1973 ("Cr.P.C." for briefly), the applicant has challenged impugned judgment and order dated 10.09.2018 passed by the learned 2nd Additional Sessions Judge (Special Judge POCSO), Rajkot in Sessions (POCSO) Case No. 54 of 2016 (hereinafter be referred as "the impugned judgment and order"). 2. On a request being made by learned advocate for the applicant to decide the revision application finally, as the issue involved in the matter is trivial and the trial is pending before the POCSO Court since 2016, the present revision application is taken up for final hearing today. 3. Heard learned advocate Mr. Ashwini K. Mehta for the applicant and learned APP Mr. J.K. Shah for the respondent-State of Gujarat. 4. Learned advocate for the applicant submitted that the impugned order passed by the learned Additional Sessions Judge refusing to permit the present applicant to cross examine the victim, would cause great injustice to him. The right of cross examination of the victim is very valuable right vested into by the prosecution. 5. Learned advocate for the applicant further argued that offence was registered against the present applicant under Section 376 of I.P.C. read with Section 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012. That, the learned advocate engaged by the present applicant before the Sessions Court since had not proceeded into the matter, and therefore, the applicant passed a pursis below Exh. 45 to relieve his advocate and requested the court to adjourn the matter so as to engage another advocate as well as filed an application calling for victim for cross examination. That, the application submitted by present applicant below Exh. 58 came to be rejected by the Court below observing that the present applicant wants to prolong the matter as since last 3 adjournments, though victim was present before the court along with her six months old child from Ahmedabad, no cross examination was made by the present applicant. 6. It is further submitted that, the observations of the trial Court are not correct about relieving advocate from the trial. That, right of cross examination of the victim is a valuable right and the same has been denied by the court below and thereby great injustice is caused to the applicant. 6. It is further submitted that, the observations of the trial Court are not correct about relieving advocate from the trial. That, right of cross examination of the victim is a valuable right and the same has been denied by the court below and thereby great injustice is caused to the applicant. Hence, it was requested by learned advocate for the applicant to quash and set aside the impugned order passed below Exh. 58 in Sessions (POCSO) Case No. 54 of 2016 dated 10th September 2018 and permit the applicant to cross examine the victim. 7. From the other side learned APP Mr. J.K. Shah has strongly objected the submissions made by learned advocate for the applicant and argued that as the case is pending since 2016, and the victim was present before the Sessions Court on 16th April 2018, cross examination of the victim was also started by the defence, but was not completed. Thereafter, thrice the victim was present before the Court for her cross-examination, however, no cross-examination was done and therefore, right to cross examine the victim was closed by the Court. That, no illegality is committed by the Sessions Judge in refusing the present applicant to cross examine the victim. That, the present applicant has tried to prolong the matter by relieving his advocate and by passing a pursis below Exh. 45. Thereafter, vide Ex. 58, an application for recalling victim was filed by the present applicant. This conduct of the applicant shows that he is not interested in cross examining the victim. That, no error has been committed by the learned Sessions Judge in dismissing the application vide Ex. 58 filed by the present applicant. Hence, learned APP requested to dismiss the present revision application. 8. Having considered the facts of the case and submissions made by learned advocate for the applicant as well as learned APP, it appears from the record that Sessions (POCSO) Case No. 54 of 2016 is pending before the learned Sessions Judge (POCSO) Court at Rajkot. It further appears from the documents produced on record that the Examination Chief of victim was started by the prosecution and she was examined vide Exh. 42 as witness No. 9 on 16.04.2018. On completing the chief examination of the victim, her cross examination was started by learned advocate for the defence. It further appears from the documents produced on record that the Examination Chief of victim was started by the prosecution and she was examined vide Exh. 42 as witness No. 9 on 16.04.2018. On completing the chief examination of the victim, her cross examination was started by learned advocate for the defence. However, during cross examination of the victim, adjournment application was submitted by defence for further cross-examination and the trial got struck on 16th April 2018. Thereafter, it appears that no further cross examination of the victim was proceeded by the defence. Suddenly, a request was made by the present applicant-accused, before the Sessions Court by filing a pursis to relieve his advocate vide Exh. 45. A further application seeking adjournment, (vide Exh. 46), was given for cross examination of the witness which was dismissed by the Court. As the accused did not deposit the amount of cost, right of prosecution to cross examine victim was closed by the Sessions Court on the very same day. Learned Judge, after making further observations that thrice accused was not present before the Court, and the warrant was issued against him, learned Judge was pleased to reject the said application preferred by the present applicant-accused. 9. It further appears that on 16th April 2018, when the victim was examined before the Sessions Court, her cross examination was not completed. Report for adjournment submitted by the learned advocate for the defence for further cross examination of the victim was allowed by the Court. After passing of 4 months, another request was made by the present applicant by filing an application vide Exh. 58, requesting the Court to permit him to further cross examine the victim. It also appears that advocate engaged by the present applicant was relieved by him by passing a pursis vide Ex. 45. Another application for adjournment was given by the present applicant vide Ex. 46 to adjourn the matter for cross examine the victim. The said application came to be dismissed, as no cost was deposited by the present applicant. From the record, it also appears that the applicant has tried to prolong the Sessions (POCSO) Case No. 54 of 2016 pending before the Sessions Court at Rajkot. 10. Be that it may, cross-examination is a valuable right given by the Legislature to an accused. From the record, it also appears that the applicant has tried to prolong the Sessions (POCSO) Case No. 54 of 2016 pending before the Sessions Court at Rajkot. 10. Be that it may, cross-examination is a valuable right given by the Legislature to an accused. Unless he would be in a position to cross examine the victim, great injustice is likely to be caused to him. May be that an amount of cost, was not paid by the present applicant as per the order passed by the Court, cannot be a ground to reject his prayer to cross examine the victim. As per the order dated 26th September, 2019, the applicant-accused has deposited Rs. 10,000/- before the Registry of this Court. 11. Under the circumstances, this court is of the view that the order passed below Exh. 58 in Sessions (POCSO) Case No. 54 of 2016 dated 10th September 2018 is required to be quashed and set aside. The present applicant is permitted to cross examine the victim. As the case is pending before the Sessions Court since 2016, the applicant is hereby directed to cross-examine the victim on the next date of hearing fixed by the Sessions Court at Rajkot. No further adjournments would be sought by the present applicant for cross examination of the victim. The amount of Rs. 10,000/- deposited by the present applicant shall be transmitted to the Sessions Court by the Registry of this Court and it shall be paid to the victim in Sessions (POCSO) Case No. 54 of 2016. This Criminal Revision Application stands allowed. Notice is discharged. Direct service is permitted.