Vijay Rajju Naharkar vs State Of Maharashtra And Others

G. A. Sanap, J

RULE. Rule made returnable forthwith. Heard finally by consent of the learned advocates for the parties.

This revision application has been filed against the order dated 01.09.2022 passed by the learned Special Judge, POCSO Court, Nagpur in Spl. Child Case No. 296/2017, whereby the learned Judge was pleased to reject the application (Exh.73) made by the applicant/accused for recalling the victim and conducting her further cross-examination.

I have heard Mr. P. A. Paripawar, learned advocate for the applicant and Mrs. S. S. Jachak, learned Additional Public Prosecutor for the non-applicant No.1/State. Non-applicant no.2/victim is also personally present in the Court today. Perused the record and proceedings.

It is seen on a perusal of the record that examination-in-chief of the victim was recorded on 06.12.2018. On that date, learned advocate for the accused was absent. The Court, therefore, asked the accused to cross-examine the victim. He had declined to cross-examine the victim. The cross was, therefore, treated as closed. Thereafter, the accused made an application (Exh.20) for granting him permission to cross-examine the victim. The said application was allowed. Learned advocate appearing for the accused, on 12.11.2021 cross-examined the victim partly.

It is seen that thereafter on some dates the advocate appearing for the accused was absent and on some dates the victim was absent. The matter, therefore, could not progress further. The matter was then listed on 02.03.2022 for cross-examination of the victim. On that date, the victim was present, but the accused was not produced from jail and the advocate for the accused was absent. Therefore, the learned Judge again closed the cross-examination of the victim.

Thereafter, the applicant/accused made an application (Exh.73) and prayed for recalling the victim and granting him permission to cross-examine the victim. The learned Judge by recording the relevant facts available on record in his order, rejected the application (Exh.73). Perusal of the impugned order would indicate that the learned Judge has recorded the reasons for rejection of the application. The learned Judge, on the basis of the record, formed an opinion that this conduct on the part of the accused and his advocate was nothing short of delaying tactic. However, the fact remains that the cross-examination of the victim is not over at the behest of the accused. In my view, if the matter is allowed to proceed further, then it would be a permanent defect and lacuna in the proceeding. This defect and lacuna would cause prejudice either to the victim or to the accused. In my view, therefore, in order to ensure fair trial to the accused and to the victim, it would be just and proper to grant one more opportunity to the accused to cross-examine the victim. No prejudice as such would be caused to the prosecution.

I am informed that after closing the cross-examination of the victim, the prosecution has examined the remaining witnesses and cross-examination of the Investigating Officer would be recorded on the next date. I am informed that now the trial is adjourned to 5th December, 2022 for recording cross-examination of the Investigating Officer. Learned advocate for the applicant undertakes that he would appear before the trial Court on 05.12.2022 sharp at 11.00 am and in one day he would complete the cross-examination of the victim.

In view of above, the criminal revision application is allowed.

i] The impugned order dated 01.09.2022 passed by the learned Special Judge, POCSO Court, Nagpur in Spl. Child Case No. 296/2017, rejecting the application (Exh.73), is set aside.

ii] The application (Exh.73) is allowed, as prayed for.

iii) It is ordered that the learned Special Judge shall secure presence of the victim on the next date of the matter i.e. 05.12.2022 for recording her further cross-examination.

iv) As undertaken by the learned advocate appearing for the applicant, he shall appear before the trial Court on 05.12.2022 sharp at 11.00 am and complete the cross-examination of the victim.

v) Learned Judge shall ensure production of the accused as well as presence of witnesses before the Court on the said date i.e. 05.12.2022.

vi) With these directions, the revision application stands disposed of.