IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION

Present:-

THE HON’BLE JUSTICE CHAITALI CHATTERJEE (DAS)

CRR NO.4984 of 2023

FIROJ ALI @ BABU @ BABLU & ANR.

VS.

THE STATE OF WEST BENGAL

For the Petitioner s : Mr. Deepak Prahladka, Adv.,

Ms. Reshmi Khatun, Adv.

For the State : Mr. Debasish Roy, learned Public Prosecutor,

Mr. Arijit Ganguly, Adv., Mrs. Debjani Sahu, Adv.

Last heard on : 11-12-2025. Judgement on : 11-12-2025. Uploaded on : 12-12-2025.

CHAITALI CHATTERJEE (DAS), J. :-

1. This is an application under Section 397 read with Section 482 of the Code of

Criminal Procedure, 1973 filed by the petitioners being accused in the complaint lodged on behalf of the opposite parties against an order dated 29^th August, 2023 passed by the learned Judge, Special Court, 2^nd Additional Sessions Judge, Alipore, 24-Parganas (South) in Special ST -18(01)17 whereby an application under Section

311 of the Code of Criminal Procedure, 1973 was rejected.

2. It is the case of the present petitioners that the petitioners have been arraigned as accused persons in connection with Canning Police Station Case No.179 of 2016 dated 22-03-2016 and on completion of investigation, charge sheet was filed and charge was framed under Sections 363/120B/366A/368/370/370A/372/373/323/506(II) of the Indian Penal Code and Sections 6/17 of the Protection of Children from Sexual Offences (POCSO) Act against the present petitioners. After that, the trial commenced and out of total charge- sheeted witnesses, the evidence of nine witnesses including the victim girl has been recorded.

3. On 18^th January, 2018, while the cross examination of the victim girl was going on, the learned advocate for the present petitioners/accused prayed for an adjournment regarding cross examination of the said PW 1 on the ground that the counsel for the petitioners was busy with a case before this Court. However, the prayer was initially not considered and time was extended and the court had to wait till 5 P.M. However, the advocate could not reach and when the learned defence counsel prayed before the learned court to proceed with the cross examination, he refused to cross examine and, accordingly, the said cross examination was concluded. After that, in the month of January, 2019, the then learned advocate prepared one petition for recalling of the order for cross examination of P.W. 1 but was filed on December 02, 2019 and the hearing of that petition was not heard. On 29^th August, 2023, the learned advocate withdrew the said petition and filed a fresh petition for recalling of the order for cross examination of the PW 1. The learned court by the impugned order dated 29^th August, 2023 refused to allow such prayer with the observation that the recalling application was filed at a belated stage and also on the settled principle of law that the minor child cannot be recalled for several times for cross examination and further that the petition for cross examination of the victim remains silent as regards the area for which the cross examination is necessary.

4. Mr. Prahladka, learned advocate, representing the petitioners, files a supplementary affidavit before this Court whereby the order passed on 18th January, 2018 by which such cross examination was closed and the copy of the petition initially prepared on 31^st January, 2019 have been annexed. It is the specific contention of the learned advocate for the petitioners that admittedly there is a delay in filing the application for recalling. However, subsequently new advocate was engaged and he immediately after going through the entire facts and circumstances, filed a fresh application for recalling of the witness on the ground that the right of the accused person has been violated as he was not allowed to cross examine the P.W. 1 when the allegation is very serious in nature.

5. The learned advocate further submits that when the adjournment was refused, the learned court did not take recourse to Section 304(1) of the Code of Criminal Proc