XXX Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is an application filed under Sec. 397/401 of the Code of Criminal Procedure read with Sec. 482 of Cr.Pc, 1973 and corresponding to Sec. 438/442 of BNSS 2023 read with Sec. 528 of BNSS 2023 filed for quashing and or setting aside the order dated 13th of August 2024 whereby the application filed under Sec. 311 of the code of Criminal procedure 1973 has been allowed. Fact of Case

(2.) The petitioner is a victim girl and the offence pertains to a human trafficking for immoral purpose where the petitioner was procured for commercial, sexual exploitation and thereafter sold for money. That apart she is a victim of social economic, physical and mental violence at the hand of the accused persons. Her mother lodged the complaint against the present Opposite Party no. 2 and others to the effect that on January 29,2023 at about 16.00 hours her daughter left home and did not return in spite of search she could not be found and then after conducting the investigation a charge sheet was submitted on April 6,2023 under Ss. 363/365/366A/370/370A/372/373/376(2n)/120B of Indian Penal Code, 1860 and Sec. 6(1) of POCSO Act, 2012 against six accused persons. The charge was framed on December 8, 23 and the trial commenced. The present petitioner adduced evidence on February 27, 2024 and March 15,2024 and after the conducting advocate duly conducted the cross-examination with all competency on 13/8/2024 when the date was fixed for evidence the O.P. No. 2 filed an application under Sec. 311 of the Code of Criminal Procedure 1973 in the most frivolous manner mentioning that at the time of cross-examination of P.W. 1, the Junior Advocate failed to put certain vital question to P.W. 1 was further cross-examination on P.W. 1 is necessary. After that the Learned Court by order dated August 13,2024 allowed such prayer against which this revisional application has been filed. The Learned Advocate submits that the Learned Court while passing such impugned order has not considered the materials on record and failed to observe any tangible and cogent reason to show as to why such recall was necessary. It is submitted that the power under Sec. 311 of the code of Criminal Procedure 1973 is to be invoked by the Court in order to meet the ends of justice and in sensitive case it causes undue hardship and harassment for the victim specially so of heinous crime. If they are repeatedly require to appear in Court for cross-examination. This application is frivolous and is liable to be set aside.

(3.) The Learned Senior Advocate on the other hand submits that at the outset submits that the matter pertains to POCSO case and the petitioner herself has affirmed affidavit after coming to this Court it was not mentioned in her petition that she was heavily pregnant; no document in support of her pregnancy has been filed. The Opposite Party is in custody since 2023, it was his valuable right as an accused which could not be exercised because of the fault on the part of a junior member of bar and that is the reason why the application for recall has to be filed. It is submitted that the accused is equally entitled to have the protection of law. The prosecution has not filed the application under Sec. 311 which was the duty to file in order to dig out the truth. It is further submitted that the very purpose of the Sec. 33 (5) of the POCSO Act was incorporated in order to stop harassment to the victims of POCSO cases and therefore the Courts were directed to ensure that the victims are not repeatedly asked for to appear before the Court to testify but in this case the victim had to come more than once for the purpose of examination in chief which continued for two days and after that she also faced the cross-examination.