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2023 DIGILAW 181 (RAJ)

Suraj Sharma @ Durgesh v. State Of Rajasthan

2023-01-16

ANOOP KUMAR DHAND

body2023
ORDER : Anoop Kumar Dhand, J. By way of filing of the instant criminal misc. petition under Section 482 Cr.P.C., the petitioner has challenged the impugned order dated 03.09.2022 passed by, Special Judge, the Protection of Children from Sexual Offences Act (for short 'the POCSO Act') No. 1, Jaipur Metropolitan, Jaipur in case No. 79/2021 by which application filed by the petitioner for summoning PW-1 Bhag Chand and the prosecutrix has been dismissed. 2. Facts of the case, in nutshell, are that the petitioner is facing trial for the offence under Section 376(2)(N), 384 of IPC and under Section 5(L)/6 of POCSO Act and Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. After framing of charge, the case was posted for recording the evidence of the prosecution witnesses and on 05.03.2022, PW-1 Bhag Chand appeared and his examination-in- chief was recorded. Counsel for the petitioner was not available on that day and the case was posted for the next date and on the next date, the petitioner refused to cross-examine these witnesses and hence cross-examination of these witnesses was closed and thereafter the case was posted for recording the statement of prosecutrix on 20.05.2022 and when these witnesses was not cross-examined, the opportunity of cross-examination was closed. Thereafter the petitioner submitted an application under Sectioni 311 Cr.P.C. for summoning these two witnesses on 30.07.2022 but the same has been rejected by the learned trial Judge vide its order dated 03.09.2022. Counsel for the petitioner submits that due to unavailability of the counsel for the petitioner, these witnesses could not be cross-examined. Counsel submits that the fair trial is a fundamental right of a person and cross-examination with the witnesses is the statutory right of the accused. Counsel submits that one last opportunity be granted to the petitioner by imposing suitable cost. 3. Per contra, learned Public Prosecutor has opposed the prayer made by the counsel for the petitioner. 4. Heard and considered the learned counsel for the parties and perused the material available on record. 5. A perusal of the impugned order indicates that sufficient opportunity was granted to the accused to cross-examine the witnesses but the same was not encashed by him and the time sought for cross-examining of these witnesses at one point of time, the counsel for the petitioner refused to cross-examine the PW-1 Bhag Chand. 5. A perusal of the impugned order indicates that sufficient opportunity was granted to the accused to cross-examine the witnesses but the same was not encashed by him and the time sought for cross-examining of these witnesses at one point of time, the counsel for the petitioner refused to cross-examine the PW-1 Bhag Chand. Hence his opportunity for cross-examination was closed. 6. Hon'ble Supreme Court in the matter of Natasha Singh v. CBI (State) reported in 2013 AIR SCW 3554 has held in para 9 as under:- "Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right." 7. Looking to the proposition of law as laid down by the Hon'ble Supreme Court in the case of Natasha Singh (supra), it is settled proposition of law that fair trial is the main object of criminal procedure and right of cross-examination is a part of right of fair trial which every person or accused has in the spirit of right of life and personal liberty. This Court is of the view that the default made by a party and whereby creating inconvenience to the opposite party can be cured and compensated by way of imposing cost upon the erring party but for the same reason he cannot be deprived from getting justice and providing him adequate opportunity to shake the credibility of the witnesses. 8. Thus, it is deemed in the interest of justice to give one more opportunity to the accused petitioner to cross-examine with the prosecutrix and PW-1 Bhag Chand provided he pays cost of Rs. 15000/-. 9. Accordingly, instant petition is allowed. 8. Thus, it is deemed in the interest of justice to give one more opportunity to the accused petitioner to cross-examine with the prosecutrix and PW-1 Bhag Chand provided he pays cost of Rs. 15000/-. 9. Accordingly, instant petition is allowed. The impugned order dated 03.09.2022 passed by learned Special Judge, the Protection of Children from Sexual Offences Act No. 1, Jaipur Metropolitan, Jaipur in case No. 79/2021 is quashed and set aside and it is directed that on the next date of hearing before the trial Court, a further date shall be fixed by the learned trial Court for the purpose of cross-examining the victim/prosecutrix and PW-1 Bhag Chand, for that the learned trial Court shall instruct the Public Prosecutor to call these witnesses for the aforesaid purpose. 10. The petitioner is directed to deposit the amount of cost in the Litigants Welfare Fund and after receiving the receipt of the same, submit the same on the record of the trial Court. It is made clear that no further opportunity would be granted to the petitioner if the petitioner fails to cross-examine the witnesses on that date and if he fails to deposit the cost. 11. Accordingly, the instant petition as well as the stay application stands disposed of.