This Criminal Original Petition is filed to call for the records and set aside the order dated 18.04.2016 passed by the Mahila Court, Chennai, dismissing Crl.M.P. No.4532 of 2016 with regard to recall of P.W.1.

2. A vignette of the facts leading to the filing of this petition is as under:

In respect of an attempt to rape a 14 year old girl by name Elastha Keerthana, a case was registered against the petitioner in the year 2013 and after investigation, the police filed a final report in S.C. No.433 of 2013 before the Mahila Court, Chennai against the petitioner for offences under Section 341, 342, 323, 354, 294 and 376 read with Section 511 and 506(II) IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for brevity the POCSO Act), 2012. Charges were framed against the accused and the victim girl (P.W.1) was examined in chief on 05.02.2014. At that time, the petitioner/accused did not cross-examine her. Thereafter, he filed an application in Crl.M.P. No.4532 of 2016 under Section 311 Cr.P.C. to recall the victim girl (P.W. 1) and P.W.s 2 and 3 who are her parents. The Trial Court, by the impugned order dated 18.04.2016, allowed the petition in part and permitted the recall of P.W.s 3 and 4 and dismissed the petitioner with regard to the victim girl (P.W.1), aggrieved by which, the accused is before this Court.

3. Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor appearing for the respondent.

4. The learned counsel for the petitioner submitted that the accused is facing prosecution for a very grave offence and therefore, denial of opportunity to cross-examine the victim girl (P.W.1) will offend the right of a fair trial guaranteed under Article 21 of the Constitution of India.

5. Per contra, the learned Additional Public Prosecutor submitted that the Court below had given opportunity twice to the accused to cross-examine the victim girl (P.W.1), but the accused had not availed of the opportunity and therefore, he cannot claim that his right to fair trial has been extinguished by the order of the Court below.

6. This Court gave its anxious consideration to the facts and circumstances of the case and also perused the impugned order.

7. In this case, the victim girl was examined as P.W.1 on 05.02.2014 and she should have been cross examined by the accused on the very same day, as held by the Supreme Court in Vinoth Kumar vs. State of Punjab, [2015 (1) MLJ (Crl.) 288]. However, for reasons best known to the accused, the victim girl was not cross examined by the accused on 05.02.2014. All other witnesses were examined and the prosecution side was closed on 12.01.2015. The accused was questioned under Section 313 Cr.P.C. on 23.01.2015 and the case was posted for the examination of defence witnesses.

8. At that juncture, after lapse of a year, the accused filed a petition under Section 311 Cr.P.C. to recall the victim girl (P.W.1) and P.W.3 to P.W. 11 for cross examination, which was allowed by the Trial Court on 08.01.2016.

9. Pursuant to that, the victim girl (P.W.1), P.W.s 3 and 4 were present in the Court on 23.02.2016 for the purpose of cross examination by the accused. On that day, the accused did not appear and a petition under Section 317 Crl.P.C. was filed by him and adjournment was sought on a specious ground that the counsel cannot cross-examine the victim girl (P.W.1), in the absence of the accused, by relying upon Section 36(1) of the POCSO Act. The Trial Court rejected the contention and passed the following docket order on 23.02.2016:

Accused absent. P.O. P.W.1, P.W.3 and P.W.4 are present. S.33(5) of POCSO Act was explained to the counsel for the accused. The counsel is informed to cross examine the victim P.W.1 (who is 14 years old). Counsel for accused is not ready to cross examine since the accused is absent. Petition u/s 317 Cr.P.C. filed and allowed. Chief examination of P.W.1, P.W.3 and P.W.4 is closed. Issue FS to P.W.5 and P.W.6. C/o 21.03.2016

10. F