The right to cross-examine witnesses is essential for a fair trial, and courts must balance this right with the need for expeditious proceedings.

ORDER

1. The present Criminal Misc. Petition has been filed against the order dated 29.09.2021 passed by Special Court, Protection of Children From Sexual Offences Act No.l, Udaipur (hereinafter referred to as the 'trial court'), whereby the learned trial court rejected the prayer made by learned counsel appearing for the accused-petitioner seeking reserving the cross examination of victim P.W.2 Mst. W and discharged P.W.2 Mst. W from being cross examined by the petitioner while exercising the powers vested in it under Section 309 Cr.P.C.

2. Brief facts of the case are that in pursuance of the First Information Report No.242/2020 lodged at Police Station Rishabh dev, Udaipur, the present petitioner was prosecuted and is being tried by the Special Court, POCSO Act No. 1, Udaipur for the offences under Sections 363, 376, 344 IPC and under Sections 4 and 6 of the POCSO Act, 2012.

3. During the course of the trial, victim Mst. W appeared as prosecution witness P.W.2 before the trial court on 29.09.2021. After completion of Examination-in-Chief of P.W.2, the counsel for the accused petitioner prayed before the trial court that without providing him a copy of the Examination-in-Chief, he is unable to communicate the questions for cross-examination of P.W.2. On this, learned trial court asked him that since the Examination-in-Chief has taken place in his presence, he may go through the statement and then proceed for cross-examination. But the counsel appearing for the accused-petitioner expressed his inability to cross-examine without having been obtained copy of the statement of Examination-in-Chief and requested the trial court that cross-examination of the witness P.W.2 may be kept reserved. The learned trial court instead of acceding to the request for providing the copy of the Examination-in-Chief of P.W.2, while exercising powers under Section 309 Cr.P.C. discharged the P.W.2 from being cross-examined as it is necessary under Section 33 (2) of the POCSO Act that prior to cross-examination of a witness, the counsel appearing for the accused shall communicate the questions to be put to the victim to the Special Court which shall in turn put those questions to the victim. Being aggrieved by the order impugned dated 29.09.2021 passed by the learned trial court, the present petition has been filed.

Learned counsel for the petitioner submitted that since P.W.2 is a star witness in this case and if the accused-petitioner is not allowed to cross examine, then it will seriously prejudice the case of the petitioner and the same would be detrimental to him in this case. Learned counsel further submits that right to cross examine of a witness is an indefeasible right and if the same is denied by the trial court, then irreparable loss would be caused to the petitioner. Learned counsel submits that in the interest of justice and fair trial, one more opportunity may be granted to the accused petitioner to cross examine the witness P.W.2.

4. I have considered the submission made at the Bar and have gone through the Examination-in-Chief of P.W.2 as well as the order of refusal by the trial court for cross-examination of P.W.2 by the counsel for the accused-petitioner along with other relevant documents placed on record.

5. It is noted that as per the statement of Mst. W recorded under Section 161 Cr.P.C, she has stated to have gone with the present petitioner of her own will. The age of the Mst. W is reported to be 18 years and the same gets corroborated from the medical examination of Mst. W showing the age to be 17 years and 11 months.

6. The refusal of the trial court for providing a copy of the Examination-in-Chief of P.W.2 does not suffer from any infirmity. More particularly, the discretion exercised by the trial court, in the facts and circumstances of the present case, was just and proper. As per Section 231 and 309 Cr.P.C. which are reproduced as under, the discretion is solely with the trial court to adjourn the matter for cross examination