MOHAMMAD SAHID Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) This Petition has been filed under Sec. 482 of Cr.P.C. for challenging the order dtd. 5/12/2022 passed by the Additional Sessions Judge, 1st FTC, Special Judge (POCSO Act), Durg in Special Criminal Case POCSO No.57/2022 whereby, the application preferred by the Petitioner under Sec. 311 Cr.P.C for recalling the prosecutrix was dismissed.

(2.) Brief facts of the case are that a special Sessions Case is pending consideration against the Petitioner for the offence under Ss. 363, 366 and 376 IPC as also under Ss. 5 and 6 of the POCSO Act, 2012 (for short 'the Act of 2012'). In the said case, the Petitioner has moved an application on 5/12/2022 for re-cross-examination of the prosecutrix (PW-1), whose statement was recorded on 2/6/2022 and the said application was dismissed by the order impugned.

(3.) Shri Singh submits that on the earlier occasion, the previous Counsel has not properly cross-examined the prosecutrix regarding her date of birth and age and had, in a very mechanical manner and by adopting superficial method, asked questions. He further submits that as the allegation against the Petitioner is serious in nature and there is stringent punishment under the law to that extent, therefore, re-cross-examination of the prosecutrix is necessary for just decision of the case, therefore, not allowing the application filed by the Petitioner for recalling the prosecutrix is bad in law as there are well settled principles of criminal justice that the client should not suffer due to latches of the Counsel and the trial Court has dismissed the said application stating that the same has been filed by the Petitioner only to fill up the latches of the defense, which is not in accordance with law and the ambit and scope of Sec. 311 Cr.P.C has been dealt with in the matter of Varsha Garg vs. State of Madhya Pradesh and Ors reported in 2022 SCC OnLine SC 986 as also in various catena of judgments. He lastly submits that to ascertain the true age of the prosecutrix, further examination of her is necessary, which is beneficial for both sides and Sec. 33(5) of the Act of 2012 is not absolute, therefore, prays to quash the impugned order and allow the Petition.