In POCSO cases, while the best interest of the child and protection from re-victimization are paramount, the right to cross-examination may be granted as a final opportunity to ensure a fair trial, provided the accused follows statutory procedures for communicating questions to the court.

ORDER

This criminal revision under Section 438 r/w Section 442 of the Bhartiya Nagrik Suraksha Samhita, 2023 is preferred being aggrieved by the order dated 11.09.2025 passed in Special Case No.260/2024 arising out of Crime No.969/2024 registered at P.S: Banganga, District: Indore Urban by Second Additional Sessions Judge and Presiding Officer of Special Court designated under Section 28 of the POCSO, Act 2012, Indore M.P, whereby right of cross-examination of child victim (PW-1), her grandfather (PW-2) and uncle (PW-3) have been forfeited.

FACTS OF THE CASE

2. To unravel the exactitude of occurrence, it is expedient to enter into the facts of the case, which would surely navigate the path to dispense justice. Suffice it to say that the revision petitioner/accused is facing a trial under Sections 65(2), 64(2)(f), 64(2)(m), 351(3) of BNS, 2023 and Section 6/5(n), 6/5(m) and Section 6/5(l) of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the “POCSO Act, 2012”) for committing repeatedly aggravated penetrative sexual assault with the victim (PW-1) below the age of 12 years during the period of 24.07.2024 to 13.07.2024 within the territorial jurisdiction of Police Station Banganga, District Indore Urban. The revision petitioner/ accused is the step father of the child victim.

3. The trial Court has forfeited the right to cross-examination recording the finding that all the witnesses are coming from a remote village Morchakhedi Tehsil Biaora, District Rajgarh situated at a long distance of more than 200 km from Indore continuously for three times but they are not being cross-examined deliberately and today also i.e. on 11.09.2025, they are present at sharp 11:00 AM.

SUBMISSIONS OF PETITIONER’S COUNSEL

4. Challenging the impugned order, this revision petition has been preferred on the ground that the revision petitioner is in jail and the earlier counsel representing the revision petitioner/ accused withdrew himself from the case. Immediately thereafter, the revision petitioner engaged a new counsel, who filed his vakalatnama and since the case file and documents were handed over on 11.09.2025, new counsel prayed for a short adjournment of few days for proper preparation of the case. On one occasion, the total cost of Rs.2,400/- was paid by the brother of the accused as transport expenses of the victim, her grandfather and uncle. Petitioner is in the jail and all the paper work and signatures need to be done through the jail authorities and it took time and on 01.09.2025 the Trial Court gave the next date of after 10 Days i.e., 11.09.2025. Since the case file and documents were handed over on the 11.09.2025, a short adjournment of few days was sought for proper preparation of the case and failure to cross-examination was not deliberate.

5. It is further submitted that the cross-examination is a fundamental component of fair trial and it is a substantive right of the accused. Denial of these right amounts to a miscarriage of justice. Deliberately avoiding the cross-examination is a finding based on speculative and unsupported by material on record, thereby resulting in grave prejudice to the revision petitioner. The record could be accessed only after filing the vakalatnama. Counsel for the revision petitioner placed reliance on a judgment passed by