GANESH VERMA Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) This Petition has been filed under Sec. 482 Cr.P.C against the order dtd. 6/1/2023 passed by the Additional Sessions Judge, FTSC (POCSO Act), Baloda Bazar, District Balodabazar-Bhatapara in Special Criminal Case No.92/2022, whereby the application filed by the Petitioner under Sec. 311 Cr.P.C for recalling the witness i.e. the victim and her mother for cross-examination, has been dismissed.

(2.) Brief facts of the case are that the Petitioner is being prosecuted for the offence under Ss. 363, 366-A and 376 IPC as also under Ss. 4 and 6 of the POCSO Act, 2012 (for short "the Act of 2012"). On 30/11/2022, the trial Court has recorded the statement of the prosecutrix and her mother on which date, another Counsel namely Mr. SP Bharadwaj informed the Court that the arguing Counsel Shri SP. Verma has gone for attending proceedings being held at the High court, therefore, the cross-examination of the prosecutrix and her mother could not be done and prayed for another date for carrying out the same by stating that the Petitioner is ready to bear the travelling and other expenses of the witnesses. The Court below asked the Counsel appearing on behalf of Shri SP Verma to take note of Sec. 33(5) of the Act of 2012 wherein, it is mandate by the law that a Special Court shall ensure that the child is not called repeatedly to testify in the Court. Even after the insistence of the Court below for cross-examination of the said witness, Mr Bharadwaj, who was appearing on behalf of Shri SP Verma before the Court below, was not ready to cross-examine the said witness and continued to seek adjournment. In those circumstances, the trial Court has rejected the said application and closed the right of cross-examination. Hence this Petition.

(3.) Shri Verma, learned Counsel for the Petitioner submits that the order impugned is bad in law, perverse and erroneous as the original Counsel was busy on the date of hearing due to some professional reasons of being engaged in the proceedings of Criminal Appeals No.1234/2016, 1047/2013, 460/2015, 1149/2013 and 86/2014, therefore, cross-examination of the said witnesses could not be conducted and submits that at least one opportunity may be given even with an imposition of cost to safeguard the interest of the Petitioner.