ORDER :

This petition is filed under Section 482 of Cr.P.C., seeking to set aside the order dated 19.01.2019 passed on the application under Section 311 of Cr.PC for recalling the PW1 on the file of II Addl. Dist. & Sessions Judge, Kalaburagi in Spl. Case (POCSO) No.53/2017.

2. The facts of the case leading to this petition are as follows :

The complainant who is the mother of the victim lodged the complaint alleging that the accused who is resident of the same village and was very friendly with her daughter aged about 17 years. Further she has alleged on 04.08.2017, her daughter went to attend the nature call and did not return. Thereafter, herself along with another daughter went in search of the victim and at about 09.00 PM the complainant and her another daughter found the victim girl along with accused in a compromising position in a shed belonging to Bheemashankar on seeing the complainant-accused took his cloths and ran away from the spot. On enquiry the victim girl revealed that the accused had committed sexual assault on her. On the basis of the said complaint, respondent-police registered the case and after investigation filed charge sheet before the Special Court. The victim was examined before the trial Court on 09.01.2018 as PW1 and on that day the counsel for the accused-petitioner herein sought time for cross-examination of the said witness. The request was rejected on the ground that there are no sufficient cause for granting adjournment. Thereafter, the petitioner kept quite for about one year and after examination of all other witnesses filed an application under Section 311 of Cr.PC to recall the PW1 for cross-examination and the said application was filed on 01.01.2019. The prosecution opposed the said application. The learned Judge of the Special Court after hearing both the parties rejected the application by the order dated 19.01.2019 citing the provisions of Section 35(1) and 33(5) of POCSO Act.

3. The petitioner has stated that on 09.01.2018, the Senior Counsel was admitted in the hospital and hence he could not cross examine PW1. Now all the material witnesses have been examined except official witness. The counsel has cross examined all other witnesses. For the adjudication of the case, the cross-examination of PW1 is very essential and without her cross-examination it will seriously prejudice the defense of the accused. Therefore, the impugned order is liable to be set aside and PW1 may be recalled for cross-examination.

4. Heard the learned counsel for the petitioner and the learned High Court Government Pleader.

5. The learned counsel for the petitioner submits that the defense counsel has cross examined all other witnesses and that the cross examination of PW1 could not be done for the reason that the learned counsel appearing for the accused-petitioner was unwell and he was admitted in the hospital on that day and in case PW1 who is the victim in the case is not recalled for cross examination the defense of the accused would be prejudiced and therefore it is necessary to recall the PW1 for cross-examination.

6. Per contra, the learned High Court Government Pleader opposes the petition and submits that the trial Court has recorded the reasons for rejecting the application filed under Section 311 of Cr.PC based on the provisions of 35(1) and 33(5) of POCSO Act and that the petitioner filed application for recalling PW1 after expiry of one year from the date of her examination before the trial Court and there is no reason forthcoming for the same.

7. Admittedly PW1 is the victim in the case and she has deposed against the petitioner-accused involving him in the alleged offences under Sections 376, 506 of IPC and Section 4, 5(L), 6, 8 and 12 of POCSO Act. In case the said witness is not recalled and an opportunity is not given to the accused-petitioner for her cross examination, definitely it would go against the accused and thereby it prejudice his defense. However, the petitioner has not made out any bona