High Court · 2025

1. Heard Mr. Shekhar Gangal, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and Mr. Wahid Jamal, the learned counsel representing first informant-opposite party-2.

2. Perused the record.

3. Applicant-Shahid, who is a named as well as charge sheeted accused and facing trial before Court below, has now approached this Court by means of present application under Section 528 BNSS with the following prayer;- "It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow the application and to quash the order dated 09.08.2024 passed by Additional Session Judge/Special Judge (POCSO) Court No.2, Meerut and to allow the application under Section 311 Cr.P.C. dated 09.08.2024 with regard to P.W.-1, so that re-examination of P.W.-1 can taken place in Session Trial No.536 of 2021 (State vs. Shahid) arising out of Case Crime No.1045 of 2018, under Section 376, 511, 452, 506 I.P.C., pending in the Court of Additional Session Judge/Special Judge (POCSO) Court No.2, Meerut. It is further prayed that this Hon'ble Court may kindly please to stay the effect and operation of the order dated 09.08.2024 passed by Additional Session Judge/Special Judge (POCSO) Court No.2, Meerut and to allow the application under Section 311 Cr.P.C. dated 09.08.2024 with regard to P.W.- 1, so that re-examination of P.W.-1 can taken place in Session Trial No.536 of 2021 (State vs. Shahid) arising out of Case Crime No.1045 of 2018, under Section 376, 511, 452, 506 I.P.C., during the pendency of this application, otherwise applicant shall suffer irreparable loss and injury."

4. Learned counsel for applicant submits that applicant is a named as well as charge sheeted accused and facing trial in aforementioned Sessions Trial. During the pendency of trial, PW-1 (prosecutrix) deposed before Court below. Her statement-in-chief was recorded on 03.11.2023. Thereafter, the examination-in-chief of PW-1 commenced. However, on account of some reason, the same was adjourned and 20.11.2023 was the next date fixed. On the aforesaid date, the cross examination of PW-1 (prosecutrix) could not take place as an stay application was filed on behalf of accused-applicant, which was allowed on cost of Rs. 5,00/-. Thereafter, the matter was fixed for 05.12.2023. On the aforesaid date, the counsel for applicant did not appear to cross examine PW-1 (prosecutrix), even though, she was present. Furthermore, an exemption application was filed on behalf of accused-applicant, which was rejected by Court below. However, one more opportunity was granted by Court below to the accused by granting stay of the proceedings for that day but on cost of Rs. 5,00/-. Simultaneously, the opportunity of accused-applicant to cross examine PW-1 (prosecutrix) was also extinguished.

5. Learned counsel for applicant submits that present case is a case of no cross examination. Referring to the deposition of PW-1, which is on record at page 46 of the paper book, the learned counsel for applicant submits that after the statement-in-chief of PW-1 was recorded, the examination-in-chief of PW-1 was deferred as the counsel representing accused-applicant before Court below was not present. Referring to the judgment of Supreme Court in Varsha Garg Vs. State of M.P., 2022 SCC OnLine SC 986, the learned counsel for applicant submits that since the trial before Court below is the trial of accused himself, therefore, such a trial should be a free and fair trial. The ultimate object of the trial is to find out the truth. It is well established rule of evidence that no amount of evidence can be looked into unless the same comes out unscratched from the furnace of cross examination. Since no cross examination of PW-1 (prosecutrix) has yet taken place, therefore, her statement-in-chief alone shall be read against applicant. It is thus urged by the learned counsel for applicant that principles of natural justice also require that an accused has a right to cross examine prosecution witness. As such, one more opportunity be extended to the accused-applicant to cross examine PW-1 (prosecutrix). The said submission is founded on the principle that justice should not only be done but also seen to be done. On the basis of above, it is thus urged by the learned counsel for applicant that the order impugned is liable to be set aside by this Court.

6. To buttress his submission, the learned counsel for applicant has then referred to the judgment of Supreme Court in Raja Ram Prasad Yadav Vs. State of Bihar and another (2013) 14 SCC 461, wherein the Apex Court has laid down the parameters, which are required to be observed to judge the bona-fide of an applicant in filing an application under Section 311 Cr.P.C./348 BNSS. According to the learned counsel for applicant, when the order impugned is examined in the light of parameters laid down in aforementioned judgement of the Supreme Court, it is apparent that the court below has not dealt with the facts and circumstances of the case and simply on the basis of superficial findings, rejected the said application. No attempt was made by Court below to judge the bona-fide of applicant in the light of law laid down by the Apex Court in aforementioned judgment. It is thus urged by the learned counsel for applicant that in view of above, the present application is liable to be allowed.

7. Per contra, the learned A.G.A. representing State-opposite party- 1 and Mr. Wahid Jamal, the learned counsel representing first informant-opposite party-2 have vehemently opposed the present application. They submit that since applicant is himself responsible for the situation, which has now emerged, therefore, no occasion arises to recall PW-1. On account of lackadaisical approach on the part of defence in pursuing the trial, no cross examination of PW-1 could take place. On the above premise, they submit that no illegality has been committed by Court below in passing the order impugned. As such, no interference is warranted by this Court in present application. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

8. Having heard the learned counsel for applicant, the learned A.G.A. for State-opposite party-1, Mr. Wahid Jamal, the learned counsel representing first informant-opposite party-2 and upon perusal of record, this Court finds that it is an undisputed fact that no cross examination of PW-1 (prosecutrix) has yet taken place. The statement-in-chief of PW-1 (prosecutrix) was recorded on 03.11.2023. However, the examination-in-chief of PW-1 (prosecutrix) was defered on the ground that the learned counsel for applicant is not present. Thereafter on two dates, the cross examination of PW-1 (prosecutrix) could not take place, even though, she was present firstly on the ground that adjournment has been prayed on behalf of accused-applicant on 20.11.2023 and thereafter, exemption was prayed for by accused-applicant on 22.11.2023.

9. Be that as it may, since the trial before Court below is that of accused-applicant himself, therefore, such a trial should be a free and fair trial. No prejudice can be said to be caused to the first informant-opposite party-2, in case, one more opportunity is granted to accused-applicant but certainly after imposing cost. Apart from above, this Court further finds that the observations made by the Apex Court in the case of Raja Ram Prasad Yadav (Supra) and Varsha Garg (Supra), have not been adhered to by Court below, which passing the order impugned. Moreover, no serious prejudice can be said to be caused to the prosecution, in case, one more opportunity is granted to accused-applicant to cross examine PW-1 (prosecutrix) but certainly upon payment of cost .

10. In view of the discussion made above, the present application succeeds and is liable to be allowed.

11. It is, accordingly, allowed but on cost of Rs. 15,000/-.

12. The applicant shall deposit cost of Rs. 15,000/- with the Court below within a period of 15 days from today. In case, cost of Rs. 15,000/- as directed above, is deposited by accused-applicant before Court below, then Court below shall recall PW-1 (prosecutrix). Upon her appearance, amount of cost deposited by applicant under this order shall be paid to PW-1 (prosecutrix). It is, however, provided that only one opportunity shall be available to accused-applicant to cross examine PW-1 (prosecutrix), if by any reason, accused-applicant fails to cross examine PW-1 (prosecutrix) upon her appearance before Court below on account of any reason, whatsoever, then the opportunity granted to accused-applicant to cross examine PW-1 (prosecutrix) under this order shall stand extinguished without any further reference to the Court. Order Date :- 14.5.2025 Vinay VINAY KUMAR VINAY KUMAR High Court of Judicature at Allahabad High Court of Judicature at Allahabad

1. Heard Mr. Shekhar Gangal, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and Mr. Wahid Jamal, the learned counsel representing first informant-opposite party-2.

2. Perused the record.

3. Applicant-Shahid, who is a named as well as charge sheeted accused and facing trial before Court below, has now approached this Court by means of present application under Section 528 BNSS with the following prayer;- "It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow the application and to quash the order dated 09.08.2024 passed by Additional Session Judge/Special Judge (POCSO) Court No.2, Meerut and to allow the application under Section 311 Cr.P.C. dated 09.08.2024 with regard to P.W.-1, so that re-examination of P.W.-1 can taken place in Session Trial No.536 of 2021 (State vs. Shahid) arising out of Case Crime No.1045 of 2018, under Section 376, 511, 452, 506 I.P.C., pending in the Court of Additional Session Judge/Special Judge (POCSO) Court No.2, Meerut. It is further prayed that this Hon'ble Court may kindly please to stay the effect and operation of the order dated 09.08.2024 passed by Additional Session Judge/Special Judge (POCSO) Court No.2, Meerut and to allow the application under Section 311 Cr.P.C. dated 09.08.2024 with regard to P.W.- 1, so that re-examination of P.W.-1 can taken place in Session Trial No.536 of 2021 (State vs. Shahid) arising out of Case Crime No.1045 of 2018, under Section 376, 511, 452, 506 I.P.C., during the pendency of this application, otherwise applicant shall suffer irreparable loss and injury."

4. Learned counsel for applicant submits that applicant is a named as well as charge sheeted accused and facing trial in aforementioned Sessions Trial. During the pendency of trial, PW-1 (prosecutrix) deposed before Court below. Her statement-in-chief was recorded on 03.11.2023. Thereafter, the examination-in-chief of PW-1 commenced. However, on account of some reason, the same was adjourned and 20.11.2023 was the next date fixed. On the aforesaid date, the cross examination of PW-1 (prosecutrix) could not take place as an stay application was filed on behalf of accused-applicant, which was allowed on cost of Rs. 5,00/-. Thereafter, the matter was fixed for 05.12.2023. On the aforesaid date, the counsel for applicant did not appear to cross examine PW-1 (prosecutrix), even though, she was present. Furthermore, an exemption application was filed on behalf of accused-applicant, which was rejected by Court below. However, one more opportunity was granted by Court below to the accused by granting stay of the proceedings for that day but on cost of Rs. 5,00/-. Simultaneously, the opportunity of accused-applicant to cross examine PW-1 (prosecutrix) was also extinguished.

5. Learned counsel for applicant submits that present case is a case of no cross examination. Referring to the deposition of PW-1, which is on record at page 46 of the paper book, the learned counsel for applicant submits that after the statement-in-chief of PW-1 was recorded, the examination-in-chief of PW-1 was deferred as the counsel representing accused-applicant before Court below was not present. Referring to the judgment of Supreme Court in Varsha Garg Vs. State of M.P., 2022 SCC OnLine SC 986, the learned counsel for applicant submits that since the trial before Court below is the trial of accused himself, therefore, such a trial should be a free and fair trial. The ultimate object of the trial is to find out the truth. It is well established rule of evidence that no amount of evidence can be looked into unless the same comes out unscratched from the furnace of cross examination. Since no cross examination of PW-1 (prosecutrix) has yet taken place, therefore, her statement-in-chief alone shall be read against applicant. It is thus urged by the learned counsel for applicant that principles of natural justice also require that an accused has a right to cross examine prosecution witness. As such, one more opportunity be extended to the accused-applicant to cross examine PW-1 (prosecutrix). The said submission is founded on the principle that justice should not only be done but also seen to be done. On the basis of above, it is thus urged by the learned counsel for applicant that the order impugned is liable to be set aside by this Court.

6. To buttress his submission, the learned counsel for applicant has then referred to the judgment of Supreme Court in Raja Ram Prasad Yadav Vs. State of Bihar and another (2013) 14 SCC 461, wherein the Apex Court has laid down the parameters, which are required to be observed to judge the bona-fide of an applicant in filing an application under Section 311 Cr.P.C./348 BNSS. According to the learned counsel for applicant, when the order impugned is examined in the light of parameters laid down in aforementioned judgement of the Supreme Court, it is apparent that the court below has not dealt with the facts and circumstances of the case and simply on the basis of superficial findings, rejected the said application. No attempt was made by Court below to judge the bona-fide of applicant in the light of law laid down by the Apex Court in aforementioned judgment. It is thus urged by the learned counsel for applicant that in view of above, the present application is liable to be allowed.

7. Per contra, the learned A.G.A. representing State-opposite party- 1 and Mr. Wahid Jamal, the learned counsel representing first informant-opposite party-2 have vehemently opposed the present application. They submit that since applicant is himself responsible for the situation, which has now emerged, therefore, no occasion arises to recall PW-1. On account of lackadaisical approach on the part of defence in pursuing the trial, no cross examination of PW-1 could take place. On the above premise, they submit that no illegality has been committed by Court below in passing the order impugned. As such, no interference is warranted by this Court in present application. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

8. Having heard the learned counsel for applicant, the learned A.G.A. for State-opposite party-1, Mr. Wahid Jamal, the learned counsel representing first informant-opposite party-2 and upon perusal of record, this Court finds that it is an undisputed fact that no cross examination of PW-1 (prosecutrix) has yet taken place. The statement-in-chief of PW-1 (prosecutrix) was recorded on 03.11.2023. However, the examination-in-chief of PW-1 (prosecutrix) was defered on the ground that the learned counsel for applicant is not present. Thereafter on two dates, the cross examination of PW-1 (prosecutrix) could not take place, even though, she was present firstly on the ground that adjournment has been prayed on behalf of accused-applicant on 20.11.2023 and thereafter, exemption was prayed for by accused-applicant on 22.11.2023.

9. Be that as it may, since the trial before Court below is that of accused-applicant himself, therefore, such a trial should be a free and fair trial. No prejudice can be said to be caused to the first informant-opposite party-2, in case, one more opportunity is granted to accused-applicant but certainly after imposing cost. Apart from above, this Court further finds that the observations made by the Apex Court in the case of Raja Ram Prasad Yadav (Supra) and Varsha Garg (Supra), have not been adhered to by Court below, which passing the order impugned. Moreover, no serious prejudice can be said to be caused to the prosecution, in case, one more opportunity is granted to accused-applicant to cross examine PW-1 (prosecutrix) but certainly upon payment of cost .

10. In view of the discussion made above, the present application succeeds and is liable to be allowed.

11. It is, accordingly, allowed but on cost of Rs. 15,000/-.

12. The applicant shall deposit cost of Rs. 15,000/- with the Court below within a period of 15 days from today. In case, cost of Rs. 15,000/- as directed above, is deposited by accused-applicant before Court below, then Court below shall recall PW-1 (prosecutrix). Upon her appearance, amount of cost deposited by applicant under this order shall be paid to PW-1 (prosecutrix). It is, however, provided that only one opportunity shall be available to accused-applicant to cross examine PW-1 (prosecutrix), if by any reason, accused-applicant fails to cross examine PW-1 (prosecutrix) upon her appearance before Court below on account of any reason, whatsoever, then the opportunity granted to accused-applicant to cross examine PW-1 (prosecutrix) under this order shall stand extinguished without any further reference to the Court. Order Date :- 14.5.2025 Vinay VINAY KUMAR VINAY KUMAR High Court of Judicature at Allahabad High Court of Judicature at Allahabad