IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VISHAL MISHRA th ON THE 14 OF JULY, 2023 MISC. CRIMINAL CASE No. 58594 of 2022 BETWEEN:-

ROHIT SHARMA, S/O LATE SHRI NIWAS SHARMA, AGED ABOUT 21 YEARS, OCCUPATION: LABOUR, R/O VILLAGE KHUSHRED, P.S. SALEHA, DISTT PANNA (MADHYA PRADESH)

.....APPLICANT (BY SHRI D.S. LODHI - ADVOCATE)

AND

1. STATE OF MADHYA PRADESH, THROUGH POLICE STATION SALEHA, DISTRICT PANNA (MADHYA PRADESH)

2. VICTIM "A" .....RESPONDENTS (SHRI A.K. RAWAT - GOVERNMENT ADVOCATE FOR RESPONDENT NO.1)

This application coming on for admission this day, the court passed the following:

ORDER

This petition under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.') has been filed challenging the order dated 18.11.2022 passed in S.C. No.04 of 2022 by the Special Judge (POCSO), District Panna whereby the application filed under Section 311 of the Cr.P.C. has been rejected.

2. The case of the petitioner is that in pursuance to the complaint lodged by the mother of the prosecutrix, an FIR bearing Crime No.321 of 2021 has been Signature Not Verified Signed by: SUSHEEL registered against the applicant and co-accused persons for offences under Sections 363, 343, 376(D), 376(N) and 506 of the Indian Penal Code and Sections 3/4 and 5(1)/6 of the Protection of Children From Sexual Offences Act, 2012 (for short 'the POCSO Act') at Police Station Saleha, District Panna. After completion of the investigation, charge-sheet has been filed before the competent court, charges were framed and the trial proceed further. On 26.09.2022 the statement of the prosecutrix (PW-2) has been recorded. On 05.11.2022 an application under Section 311 of the Cr.P.C. has been filed by the applicant for reexamination of the prosecutrix (PW-2) on the ground that in relation to the last seen point the cross-examination could not be conducted. The trial Court has rejected the application vide impugned order dated

18.11.2022, therefore, the present petition has been filed.

3. It is argued that the application under Section 311 of the Cr.P.C. can be filed at any stage of the proceedings and the Court is only required to see that whether the application is required to be allowed to do the substantial justice in the matter. The learned trial Court has committed an error in rejecting the application on the ground that the cross-examination is done at length and in the matter of POCSO Act especially section 33(5) of the POCSO Act clearly provides that the child/prosecutrix should not be called in Court again and again. The only ground that cross-examination on a particular point could not be done cannot be a ground to fill the lacuna which has left by the defence. But the fact remains that the learned trial Court has failed to consider the aspect that on that issue the cross-examination was essential to do substantial justice in the matter, therefore, the application should have been allowed.

4. Per contra, counsel appearing for the State has vehemently opposed the contention and supported the impugned order on the ground that although in Signature Not Verified Signed by: SUSHEEL terms of Section 311 of the Cr.P.C. the application could be filed at any stage of the proceedings but it is the discretion of the Court whether to allow the application or not. Even otherwise the Court is required to see that whether the calling of witness for reexamination is required or not, looking to the facts and circumstances of the case. In the present case a detailed cross-examination of the prosecutrix has already been done. Merely the fact that the counsel was not available on the very date, but the cross-examination was conducted in the matter by some other counsel, therefore, it cannot be a ground that complete cross-examination to particular point could not be done. The Hon'ble Supreme Court in the case of V.N. Patil Vs. K. Niranjan Kumar and others reported in (2021) 3 SCC 661 has held as under:-

"13. The scope of Section 311 CrPC whic