Angad Rinku v. State of Rajasthan

: Mr. Vivek Choudhary, PP JUSTICE ANOOP KUMAR DHAND Order 13/01/2025

1. Aggrieved by the order dated 04.04.2023 passed by the Special Judge, POCSO Act, 2012, Jaipur District, the instant petition has been preferred.

2. By passing the order impugned, the learned Judge has rejected the application filed by the petitioner under Section 311 Cr.P.C. for recalling the victim for the purpose of cross- examination.

3. Counsel for the petitioner submits that the petitioner is in custody and when the statements of prosecutrix were recorded before the Trial Court on 07.01.2023, counsel refused to cross-examine the prosecutrix only on the count that he was engaged only for the purpose of filing the bail application. Counsel submits that on refusal of the counsel appearing for the petitioner, his opportunity of cross- examination was closed. Counsel submits that the petitioner (2 of 5) [CRLMP-8314/2024] was directed to submit the list of proposed questions to be asked from the prosecutrix. When the petitioner failed to submit the list of the aforesaid questions/ suggestions, the order impugned has been passed, by which his right of cross- examination has been closed. Counsel submits that the petitioner was not supposed to submit the list of the questions to be put to the prosecutrix for the purpose of cross- examination. Counsel submits that the petitioner remained unrepresented, hence, under these circumstances, the Trial Court was under a legal obligation to engage counsel/ amicus curiae on behalf of the petitioner from the Legal Aid Services Authority, but instead of doing so, the order impugned has been passed. Counsel submits that the Trial Court has failed to discharge its duties, therefore, interference of this Court is warranted. In support of his contentions, he has placed reliance upon the following judgments:

1. Angad @ Rinku vs. State of Rajasthan (DB Criminal (Jail) Appeal No.242/2023) passed by the Division Bench of this Court on 25.11.2024.

2. Khushwant @ Kushwant Jat vs. State of Rajasthan (S.B. Criminal Appeal No380/2027) passed by the Co-ordinate Bench of this Court on

17.12.2019.

3. Pidika Sambaru vs. State of Odisha and Anr. (CRL REV No.490/2021) passed by the Orissa High Court on 04.03.2022.

4. Mohammad Ali Akbar @ Ali Umar vs. State Karnataka (Criminal Petition No.4449/2022) passed by the Karnataka High Court on 06.06.2022. (3 of 5) [CRLMP-8314/2024]

5. Vinod Rawat Vs. State (Crl. M. C. 4584/2022) passed by the Delhi High Court on

20.09.2022. Counsel submits that under these circumstances, a last opportunity be granted to the petitioner to cross-examine the prosecutrix on the next date.

4. Per contra, learned Public Prosecutor opposed the prayer and submitted that in-spite of granting opportunity of cross- examination by the Trial Court to the petitioner, he failed to cross-examine her, hence, under these circumstances, no option was there with the Trial Court to close his opportunity to cross-examine, hence, under these circumstances, interference of this Court is warranted.

5. Heard and considered the submissions made at Bar and perused the material available on the record.

6. Perusal of the record indicates that when the examination-in-chief of the prosecutrix was recorded on

07.01.2023, the counsel appearing on behalf of the petitioner refused to cross-examine the aforesaid witness on the pretext that he was engaged only for the purpose of filing bail application.

7. It is true that as per the provisions contained under Section 33(5) of the POCSO Act, the Special Court shall ensure that the child be not called repeatedly to testify in the Court. The object behind incorporating the above provision under the POCSO Act is that the child victim is not harassed, but the same cannot be used as a shield by the Trial Court to deprive the accused by a right of proper cross-examination. (4 of 5) [CRLMP-8314/2024] The petitioner has every right for conducting a fair trial. It is mandatory for a Court to recall a witness for cross- examination, if his evidence appears to be essential for just decision of the case. There is no bar to call or recall a witness for further cross-examination, as the Apex Court in the case of Godrej Pacific Tech Ltd. vs. Computer Joint India Ltd. reported in 2008 (11) SCC 108 has held as under: "6....The section is manifestly in two parts. Whereas the word used in the first part is "may", the second part uses "shall". In consequence, the first part gives purely discretionary authority to a criminal court and enables it at any stage of an enquiry, trial or proceeding under the Code (a) to summon anyone as a witness, or (b) to examine any person present in the court, or (c) to recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case. This is a supplementary provision enabling, and in certain circumstances imposing on the court the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the court to arrive at the truth by all lawful means and one of such means is the (5 of 5) [CRLMP-8314/2024] examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts."

8. In view of the aforesaid, this Court is of the view that cross-examination of the prosecutrix/ victim witness is an essential right of the accused and the same has not been granted to the petitioner. The impugned order passed by the Court below is not sustainable in the eye of law and is liable to be and is hereby quashed and set aside.

9. Accordingly, the instant criminal misc. petition stands allowed.

10. The Trial Court is directed to summon the victim PW-1 "R" for the purpose of her cross-examination on the next date.

11. The stay application and all pending applications, if any, stand disposed of. (ANOOP KUMAR DHAND),J KuD/150