ORDER/JUDGMENT : – Shri Sushil Goswami, Counsel for the applicant.

Shri Rajeev Upadhyay, Counsel for the State.

This application under section 482 of Criminal Procedure Code has been filed against the order dated 5-4-2022 passed by Special Judge (POCSO Act), Datia in S.C. No. 40/2016, by which application filed by the applicant under section 311 of Criminal Procedure Code has been rejected.

2. The necessary facts for disposal of present application, in short, are that on 28-12-2021, trial was fixed for examination of Ranjana Chauhan. Her examination-in-chief was recorded, however, a prayer was made by the applicant that since the lawyers are abstaining from work, therefore, one more opportunity may be granted to cross-examine her. Accordingly, cross-examination of the witness was deferred with a specific observation that on the next date of hearing, the applicant shall cross-examine her and the case was fixed for 11-1-2022. On 11-1-2022 the prosecution witness Ranjana Chauhan was present, but a pass-over was sought on behalf of the applicant. Accordingly, the case was taken up at 05:15 PM, however, counsel for the applicant refused to cross-examine her. Accordingly, the right of the applicant to cross-examine Ranjana Chauhan (PW-18) was closed. The applicants filed an application under section 311 of Criminal Procedure Code which has been dismissed by the impugned order dated 5-4-2022.

3. Challenging the order passed by the Court below, it is submitted by the counsel for the applicant that the prosecution witness Ranjana Chauhan (PW-18) is the Investigating Officer and is an important witness and in case, if the applicant is deprived of his right to cross-examine her, then it would cause irreparable loss to the applicant. It is further submitted that it is clear from the note appended in the deposition-sheet of the prosecution witness Ranjana Chauhan (PW-18) that on 28-12-2021 the lawyers were abstaining from work and it is also clear from the order dated 11-1-2022 that counsel for the applicant had refused to cross-examine her, therefore, one last opportunity may be granted to cross-examine Ranjana Chauhan (PW-18) and since she could not be cross-examined only due to the fault on the part of the counsel for the applicant, therefore, the counsel for the applicant is ready and willing to not only pay the expenses to the prosecution witness Ranjana Chauhan (PW-18), but is also ready and willing to pay the compensation out of his own pocket so that the valuable rights of the accused can be saved.

4. Per contra, counsel for the State has vehemently opposed the submissions made by the counsel for the applicant. It is submitted that the charge-sheet was filed on 30-11-2016 and the charges could be framed only on 8-2-2017 because at least on four occasions, counsel for the applicant had sought time to argue on the question of framing of charges. Furthermore, on 17-7-2017 Vinod Kumar (PW-1) had appeared, but his examination was deferred at the request of counsel for the applicant. On 28-12-2021 prosecution witness Ranjana Chauhan (PW-18) was present, but her cross-examination was not done as the lawyers were abstaining from work. On 29-12-2021 also counsel for the applicant did not cross-examine Ranjana Chauhan (PW-18). Thereafter, on 11-1-2022 also counsel for the applicant did not cross-examine Ranjana Chauhan (PW-18). The trial is more than five years old and speedy trial is not only the fundamental right of an accused, but also a fundamental right of the victim, which cannot be harassed at the sweet will of the applicant.

5. Heard the learned counsel for the parties.

6. From the impugned order, it is clear that on 28-12-2021 Ranjana Chauhan (PW-18) had appeared and her examination-in-chief was recorded and in spite of various judgments passed by the Supreme Court as well as High Court, by which strike by the lawyers has been declared to be illegal, the lawyers were abstaining from work. Thereafter, at the request of the applicant,