ORDER :

1. With the consent of the parties, the matter is heard finally at the motion stage.

2. Challenge in this petition under Section 482 of Code of Criminal Procedure, 1973 is to the order dated 29.07.2022 (Annex. P-1) passed by learned Additional District & Sessions Judge, FTSC (POCSO), Bhatapara, District Balodabazar-Bhatapara (C.G.) in SSC No. 12/2022 thereby rejecting application of petitioner filed under Section 311 of the Code of Criminal Procedure, 1973 (henceforth “the Code”) seeking cross-examination of PW-01 prosecutrix/victim, PW-02 & PW-03 parents of the prosecutrix/ victim.

3. Brief facts of the case is that the petitioner accused is being prosecuted for the offence under Section 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, under Sections 376(j), 307/34, 342, 201/34 of the Indian Penal Code and under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 before the Trial Court. On 10/06/2022, the Trial Court recorded the statement of the prosecutrix PW-01 and her parents PW-02 & PW-03, but on that day, the counsel engaged on behalf of the petitioner was at Raipur due to some professional work, therefore, the cross-examination of the prosecutrix and her parents could not be done. An application under Section 311 of the Cr.P.C. was filed before the Trial Court for recall of the prosecutrix and her parents PW-02 & PW-03 for their cross-examination, as those witnesses have not been cross examined on behalf of the petitioner. By the impugned order the said application was rejected by the Trial Court. Hence, the present petition filed by the petitioner.

4. Learned counsel for petitioner would submit that the order passed by the Trial Court is erroneous. He submits that the petitioner/accused is in jail/judicial custody. PW-01, PW-02 & PW-03 are the important witnesses in this case and not even a single question was put to them by the accused himself because he is an illiterate villager (labour), unable to understand the legal provision and the counsel engaged by him for contesting the case was at Raipur in connection with some other case. He submits that fair trial is the main object of the criminal procedure and Court is bound to ensure that such provision is not hampered in any manner. Fair opportunity must also be given to the accused for cross-examination. It is also submitted that after framing of charge on 01/06/2022, the case was fixed on 10/06/2022 for recording evidence of the witnesses (PW-01, PW-02 & PW-03). However, on that day the counsel for the petitioner/accused was not present and as such the cross-examination of the aforesaid witnesses could not be done. The object of cross-examination is to test the story of a witness given by him in the examination-in-chief and assist the Court in finding out the truth and prevent the miscarriage of justice. The trial Court was not justifying in rejecting the application under Section 311 of Cr.P.C. as for want of cross-examination of these material witnesses (PW-01, PW-02 & PW-03). The defence of the petitioner would be adversely affected. Therefore, the impugned order is liable to be set aside and the petitioner be permitted to cross-examine the aforesaid witnesses through his counsel.

Reliance has been placed on the decision of Hon'ble Supreme Court in the matter of Swapan Kumar Chatterjee Vs. Central Bureau of Investigation, 2019 (14) SCC 328 and the decision of this Court in the matter of Manish Sonkar Vs. State of Chhattisgarh passed on 25/02/2022 in CRMP No. 74/2022.

5. On the other hand, learned State Counsel submits that while rejecting application of petitioner filed under Section 311 Cr.P.C., the reasons assigned by the Court below are in accordance with law. There is no infirmity or illegality in impugned order warranting interference by this Court.

6. I have heard learned counsel appearing for the parties and perused the impugned order as well as documents placed on record.

7. In the matte