Lalchand Majhi v. State

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** CRR/53/2024 Lalchand Majhi ...

Petitioner Vs.

The State ...

Respondent Mr. K. Sabir ... for the Petitioner Mr. Sumit Karmakar ... for the Respondent December 11, 2024 [TK] Item No.2 1.

Rejection of petition made under Section 311 of Cr.P.C. to recall victim girl for her cross-examination by learned Judge, Special Court, POCSO on 5th September, 2024 triggered the petitioner to challenge its legality, regularity and propriety. 2.

Victim girl was examined and cross-examined on two different dates. She was cross-examined by learned Advocates for all accused persons except the petitioner as his learned Advocate was not present. Ultimately, she was discharged. 3.

Learned Advocate for the petitioner prays for an opportunity for cross-examination of the victim girl on some material facts otherwise his interest would be adversely affected.

4.

Learned Public Prosecutor concedes that one opportunity may be given to petitioner to cross-examine the victim girl for the ends of justice, but he should not be permitted to drag this case in the name of cross-examination. The delay in proceeding shall frustrate substantial justice to the victim girl. He further submits that the victim girl is residing at far off place, the expenses borne by victim girl in attending the Court for her

cross-examination on recall, shall be paid by the petitioner. This petition should not be allowed without any order as to the cost and certain condition.

5.

Learned Trial Court has rejected the prayer in the spirit of Section 35 of the POCSO Act to avoid appearance of victim girl in Court, as petitioner did not avail the opportunity of her cross-examination.

6.

The right of accused to cross-examine the witness is the integral part of criminal jurisprudence and denying this right would amount to deviation therefrom and would frustrate the principles of natural justice. The granting of an opportunity to cross-examination of witness, would sub-serve the substantial justice. However, the POCSO Act requires that victim girl should not be traumatized in the environment of Court as Section 35 of the POCSO Act provides for conclusion of the trial of POCSO case within one year after the date of cognizance and must record evidence of a child within 30 days from the date of cognizance.

7.

In view of the above discussion, I am of the view to allow the petitioner to cross-examine the victim girl on a date fixed by the learned Trial Judge, but preferably within two months from the date of communication of this order. Learned Judge, Special Court shall not grant any adjournment to the petitioner for further cross-examination of victim girl.

8.

Accordingly, the instant Revisional Application CRR 53 of 2024 is allowed, subject to the payment of cost of Rs. 5,000/- (Rupees Five thousand only) to be paid to the victim girl or her

guardian. Petitioner shall cross-examine the victim girl on a date, so fixed by learned Trial Court.

9.

Learned Trial Court is directed to fix a convenient date within two months from the date of communication of this order only for cross-examination of victim girl and on payment of cost as directed.

10.

The Revisional Application CRR 53 of 2024 along with connected application, if any, is disposed of. 11.

Interim order/s, if any, shall stands vacated. 12.

Urgent Photostat certified copy of this order, if applied for, may be supplied to the parties upon compliance of usual formalities.

(Uday Kumar, J.)