ORDER :

1. This Petition has been filed under Section 482 Cr.P.C against the order dated 06.01.2023 passed by the Additional Sessions Judge, FTSC (POCSO Act), Baloda Bazar, District Balodabazar-Bhatapara in Special Criminal Case No.92/2022, whereby the application filed by the Petitioner under Section 311 Cr.P.C for recalling the witness i.e. the victim and her mother for cross-examination, has been dismissed.

2. Brief facts of the case are that the Petitioner is being prosecuted for the offence under Sections 363, 366-A and 376 IPC as also under Sections 4 & 6 of the POCSO Act, 2012 (for short ‘the Act of 2012’). On 30.11.2022, the trial Court has recorded the statement of the prosecutrix and her mother on which date, another Counsel namely Mr. S.P. Bharadwaj informed the Court that the arguing Counsel Shri S.P. Verma has gone for attending proceedings being held at the High court, therefore, the cross-examination of the prosecutrix and her mother could not be done and prayed for another date for carrying out the same by stating that the Petitioner is ready to bear the travelling and other expenses of the witnesses. The Court below asked the Counsel appearing on behalf of Shri S.P. Verma to take note of Section 33(5) of the Act of 2012 wherein, it is mandate by the law that a Special Court shall ensure that the child is not called repeatedly to testify in the Court. Even after the insistence of the Court below for cross-examination of the said witness, Mr Bharadwaj, who was appearing on behalf of Shri S.P. Verma before the Court below, was not ready to cross-examine the said witness and continued to seek adjournment. In those circumstances, the trial Court has rejected the said application and closed the right of cross-examination. Hence this Petition.

3. Shri Verma, learned Counsel for the Petitioner submits that the order impugned is bad in law, perverse and erroneous as the original Counsel was busy on the date of hearing due to some professional reasons of being engaged in the proceedings of Criminal Appeals No.1234/2016, 1047/2013, 460/2015, 1149/2013 and 86/2014, therefore, cross-examination of the said witnesses could not be conducted and submits that at least one opportunity may be given even with an imposition of cost to safeguard the interest of the Petitioner.

4. Upon requesting the assistance of Senior Advocate Shri Prafull Bharat along with Advocate Shri Manish Sharma, who are present in the Court, they also put forward their view that at least one opportunity should be given to the Petitioner in the interest of justice because the party should not suffer at the fault of the Counsel.

5. Heard learned Counsel for the parties and perused the documents annexed with the Petition carefully.

6. It is well settled that no adjournment shall be granted for the fact that the pleader of the party is engaged in another Court and that shall not be a ground for adjournment. Order 17 of Code of Civil Procedure, 1908 specifically enacted to the effect that where a witness is present in Court but a party or his pleader is not present or the party or his pleader, though present in Court, is not ready to examine or cross-examine the witness, the Court may, if it thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be, by the party or his pleader not present or not ready as aforesaid. Even in the Code of Criminal Procedure, 1973 by way of Amendment, by Act 5 of 2009 (w.e.f. 01.11.2010, the said provision was inserted that normally no adjournment shall be granted except where the circumstances are beyond the control of that party. For the sake of brevity, the said provision is reproduced as under:-

“(a) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party;

(b) the fact that the pleader of a party is engaged in another Court, shall not be a grou