The denial of the right to cross-examine witnesses must be justified, and delaying tactics by the accused or his counsel cannot be allowed to control trial proceedings.

1. This criminal revision under Section 397/401 of CrPC has been filed against the order dated 21/8/2018 passed by the Fifth Additional Sessions Judge (POCSO Act) Gwalior in Sessions Trial No. 124/2018 by which the application filed by the applicant for deferring the cross-examination of the witnesses on the ground that the counsel for the applicant was compelled to leave the Court because of bereavement in his in-laws family has been rejected and the right to cross-examine two witnesses has been closed.

2. The necessary facts for the disposal of the present revision in short are that the complainant lodged a report to the effect that the applicant, after taking off the clothes of her daughter who is aged about five years, had touched her private part. Accordingly, the applicant is facing trial for offence under Section 354 of IPC and under Section 7/8 of POCSO Act.

3. It is submitted by the counsel for the applicant that on 20/8/2018, the Public Prosecutor submitted the trial program and on the very next date i.e. 21/8/2018, the prosecutrix and her mother appeared in the Court for giving the evidence. The applicant was produced in custody and his counsel Shri Hargyan Shakya was also present. In the presence of the applicant and his counsel Shri Hargyan Shakya, the examination-in-chief of the prosecutrix (PW-1) was recorded. However, the cross-examination of the prosecutrix (PW-1) was deferred because of the lunch time. Thereafter, in the second half, Shri Hargyan Shakya, counsel for the applicant, filed an application seeking deferment of the cross-examination of the prosecutrix on the ground that because of bereavement in the in-laws family of the arguing counsel Shri Rahul Kaurav, he was required to immediately go to village Puja, District Jhansi and, therefore, the prosecutrix cannot be cross-examined because of the non-availability of Shri Rahul Kaurav and time was prayed. The said application was rejected by the trial Court on the ground that the witnesses were present in the Court from the morning itself but no such application was filed by the applicant at the earliest and where the prosecutrix is a small girl aged about 5 years, then resummoning her in the Court would frustrate the basic purpose of Section 35/33 (5) of POCSO Act. Shri Hargyan Shakya was asked to cross-examine the prosecutrix. However, Shri Shakya refused to cross-examine the prosecutrix. In the presence of Shri Shakya, the examination-in-chief of the mother of the prosecutrix (PW-2) was also recorded. Again Shri Shakya was directed to cross-examine the mother of the prosecutrix (PW-2), but instead of cross-examining her, he left the Court. Under these circumstances, the Court was left with no other option but to close the right of the applicant to cross-examine the witnesses.

4. Being aggrieved by the order dated 21/8/2018, the present revision has been filed under Section 397/401 of CrPC.

5. It is submitted by the counsel for the applicant that the right to cross-examine the witnesses is a valuable right of an accused and if the said right is not given to the accused and if he is deprived of his valuable right, then it affects the fundamental right of the accused and under these circumstances, the Court should have adjourned the matter. It is further submitted that the trial program was filed on 20/8/2018 and unfortunately the witnesses appeared on the very next date. It is further submitted that unless and until the recording of the evidence of the witnesses is deferred for 3 to 4 times, the Court should not have closed the right of the applicant to cross-examine the witnesses. Further, it is submitted that because of the fault on the part of the counsel for the applicant, the applicant may not be made to suffer as in absence of cross-examination, his possibility of conviction is more.

6. Per contra, it is submitted by the counsel for the State that the witnesses were present and it is the counsel for the applicant himself who has refused to cr