The court must ensure fair play and balance the equities to prevent the deprivation of the accused's defense.

JUDGMENT

1. The present petition has been filed under Section 482 Cr.P.C. praying that the order dated 19.8.2017 passed by Special Judge, Protection of Children from Sexual Offences Act Cases, in Criminal Case No. 190/2017 titled State v. Kamlesh @ Motaram , whereby cross-examination of the prosecutrix (name withheld to protect her identity) was made NIL, be set aside.

2. Learned counsel for the petitioner has submitted that prosecutrix appeared as P.W.3 and on the said date her examination in chief was recorded. Learned counsel for the petitioner has submitted that on 25.4.2017 no counsel was present on behalf of the petitioner accused and hence the court adjourned the case for next date for cross-examination of the prosecutrix subject to payment of cost by the petitioner. Learned counsel for the petitioner has submitted that thereafter, the case was taken up on 8.6.2017 and on the said date, Presiding Officer was on leave. Learned counsel for the petitioner has submitted that the case was adjourned to 21.7.2017 but on the said date, no order sheet was drawn as ministerial staff of the sub-ordinate court had gone on strike.

3. Learned counsel for the petitioner has contended that thereafter, the case was taken on 19.8.2017 and on the said date since father of Shri BS Chauhan counsel engaged by the petitioner was admitted in the hospital request on behalf of Shri BS Chauhan was made by Devdutt Sharma and later by Shri Yashoraj. Learned counsel for the petitioner has submitted that the court considering that the cost has not been paid and no counsel is available to extend the cross-examination of prosecutrix P.W.3 had made the cross-examination NIL.

4. Learned Public Prosecutor has submitted that the petitioner is uncle of the prosecutrix and intentionally the cross- examination was not extended only with a motive to prevail upon the family of the prosecutrix.

5. I have given due consideration to the arguments raised by the learned counsel for the parties. Even though it cannot be ruled out that the tactics were deployed by the petitioner not to extend the cross-examination may be with intention to prevail upon the prosecutrix, but this Court cannot become oblivious of the fact that the statement of the prosecutrix has gone unchallenged. Therefore, the petitioner has been deprived of his defence.

6. Consequently, to balance the equities and ensure fair play, the present petition is accepted and it is ordered that subject to payment of Rs. 10,000/- as cost, the petitioner shall be granted one opportunity to extend cross-examination upon the prosecutrix.

7. This Court is conscious that the trial court while doing appreciation of evidence can rely upon the examination-in-chief in case it comes to conclusion that the tactics were deployed only to prevail upon the prosecutrix.

8. The trial court as per its convenience and calendar shall fix the next date for cross-examination of the prosecutrix. On the said date, as undertaken by counsel for the petitioner, after deposit of the cost, the cross-examination of the prosecutrix shall be concluded.

9. The cost of Rs. 10,000/- if deposited in above terms shall be paid to the victim.