The central legal point established in the judgment is the necessity of permitting the recall and cross-examination of official witnesses in cases involving serious charges and statutory presumptions under the POCSO Act, 2012, to ensure a fair trial.

JUDGMENT

(Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C., pleased to set aside the order passed in Crl.M.P.No.1265 of 2021 in Spl.S.C.No.26 of 2019 dated 21.03.2022 on the file of the Sessions Judge, Special Court for Exclusive Trial of case under POCSO Act, Chengalpattu.)

1. The petition has been filed seeking to set aside the order passed in Crl.M.P.No.1265 of 2021 in Spl.S.C.No.26 of 2019 dated 21.03.2022, on the file of the Sessions Judge, Special Court for Exclusive Trial of case under POCSO Act, Chengalpattu.

2. The learned counsel for the petitioner would submit that the petitioner is facing trial for offences under Section 376(1), 450, 363, 375(b) of I.P.C., r/w Section 4 and 3(b) of POCSO Act, 2012 in Spl.Case.No.26 of 2019, before the Special Court, Chengalpattu. The learned counsel for the petitioner would further submit that the petitioner had filed an application to recall P.W.14 and P.W.15 for cross-examination. However, the Trial Judge had dismissed the said application by an order dated 21.03.2022. He would further submit that though there had been serious lapses on the side of the petitioner, the petitioner is facing trial for serious offences under POCSO Act, 2012. As per Section 29 of the POCSO Act, a statutory presumption is available as against the petitioner and if the petitioner is not permitted to recall and cross-examine the witnesses, that would cause grave prejudice to the petitioner.

3. He would further submit that P.W.14 and P.W.15 are the official witnesses. P.W.14 is the Investigating Officer who had registered the case and conducted the investigation and P.W.15 is the officer who had filed the final report before the court concerned and they are very much in service.

4. The learned counsel for the petitioner would submit that earlier the petitioner had filed an application to recall the officers in Crl.M.P.No.1122 of 2019. The Trial Court by an order dated 07.06.2019 was pleased to allow the application to recall the witnesses on imposition of cost of Rs.500/- and the petitioner had also paid the cost. However, P.W.14 was present before the Trial Court for cross-examination on 02.11.2021 and P.W.15 was present before the Trial Court for cross-examination on 23.11.2021. The learned counsel engaged by the petitioner was suffering from Dengue Fever from 01.11.2021 to 24.11.2021, thereby, he was unable to present before the Trial Court to cross-examine the witnesses.

5. The learned counsel for the petitioner would further submit that the Courts were also not properly functioning on account of out break of Covid-19 pandemic and the petitioner was also unable to engage another counsel to cross-examine the witnesses. He would reiterate that if the petition is allowed and the witnesses are directed to appear before the Trial Court on a particular date, the petitioner undertakes to cross-examine them on the same day of their appearance and the petitioner is also prepared to pay the cost for the appearance of the witnesses. Thereby, he would seek to set aside the order.

6. The learned Additional Public Prosecutor appearing for the respondent would submit that P.W.14 was examined in chief on 26.12.2018 and P.W.15 was examined in chief on 27.05.2019. He would further submit that, earlier, the petitioner had filed an application to recall P.W.14 and P.W.15 and it was also allowed. When they appeared before the Court, the petitioner failed to cross-examine them. He would further submit that the Trial Court rightly finding that the petitioner failed to avail the opportunity and was delaying the trial, had dismissed the application. He would further submit that the case stands posted to 27.04.2022, for further arguments.

7. Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor for the respondent and perused the materials available on record.

8. The Trial Court rightly finding that the petitioner has not availed the opportunity and had willfully failed to cross-e