Court No. - 69

Case :- APPLICATION U/S 482 No. - 1288 of 2023

Applicant :- Shan Ilahi And Another

Opposite Party :- State Of U.P. And 3 Others

Counsel for Applicant :- Suneel Kumar Rai

Counsel for Opposite Party :- G.A.

Hon'ble Samit Gopal,J.

Heard Sri Suneel Kumar Rai, learned counsel for

the applicants, Ms. Arti Agrawal, learned counsel

for the State and perused the record.

The present application under Section 482 Cr.P.C.

has been filed by the applicants with a prayer to

quash the order dated 21.12.2022 passed by

Special Judge, POCSO Act, Ghaziabad rejecting the

application of the applicant to recall the P.W.-2 for

her cross-examination in S.T. No. 59 of 2022,

arising out of Case Crime No. 89 of 2022, under

Sections 376 DB, 506 IPC and 5 MB/6 of POCSO

Act, Police Station Murad Nagar, Ghaziabad and

with further prayer to stay the further proceedings

of the aforesaid case.

The facts in brief to the present case are that the

First Information Report was lodged on 21.02.2022

by the opposite party no. 2 under Sections 376D,

506 IPC and 3/4 POCSO Act against the applicants

with the allegation that her neice, aged about ten

years, was lured by the accused persons and they

forcibly sexually assaulted her and threatened her

of dire consequences, if she disclosed it to anyone.

The incident is of 21.02.2022 at about 6.00 P.M.

The applicants stand for trial in the said case. The

statement of victim was recorded as victim 'ABC'

PW-2 before the Trial Court on 29.9.2022. She was

permitted to be cross-examined by the

prosecution. After her cross-examination on behalf

of the accused persons her cross-examination by

the prosecution was done. Subsequently an

application dated 07.12.2022 was filed with the

prayer that the case be adjourned and some date

be fixed for cross-examining the victim. The said

application stood rejected vide order dated

21.12.2022 which is the impugned order herein.

Learned counsel for the applicants argued that the

victim 'ABC' was produced before the Trial Court as

PW-2 and her testimony was recorded on

29.9.2022 in which after recording of her

examination-in-chief she was cross- examined on

behalf of the accused applicants. Prosecution then

sought permission from the Trial Court to cross-

examine her which was granted and she was thus

cross-examined.

From perusal of records, the counsel for the

accused on 07.12.2022 after going through the

records came to know that the case is fixed for

further statement of the doctor and report of FSL

but the cross-examination of the victim is still

pending and as such they may be allowed to

cross- examine her in the interest of justice.

It is argued that the Trial Curt has rejected the said

application without properly adjudicating the facts

and without considering that the said cross-

examination was required to be done in the

interest of justice. It is argued that the present

application be thus allowed and the victim 'ABC'

PW-2 to be recalled for her cross-examination.

Per contra learned counsel for the State opposed

the prayer for summoning and cross-examination.

After having learned counsel for the parties and

perusing the records, it is evident that the victim

'ABC' was produced as PW-2 before the Trial Court.

Her examination- in-chief was recorded after which

she was cross-examined on behalf of accused

persons. The prosecution then requested for

permission to cross-examine her which was

allowed and then she was cross-examined by the

prosecution. Subsequently, the application dated

07.12.2022 has been filed for the victim to be

recalled for cross-examination from the side of the

accused. The Trial Court, vide order dated

21.12.2022, which is impugned herein, has

rejected the said application on the ground that

there is no provision under Section 154 of the

Evidence Act to recall the witness for re-cross-

examination.

Perused the sa