202 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-7450-2024 (O&M) Date of Decision:- 28.02.2025 Rahul Singh ...Petitioner Versus State of Haryana & another ...Respondents CORAM:- HON’BLE MRS. JUSTICE AMARJOT BHATTI Present:- Mr. Johan Kumar, Advocate for the petitioner.

Ms. Aditi Girdhar, AAG, Haryana.

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AMARJOT BHATTI, J. (Oral)

1. Petitioner Rahul Singh has filed petition under Section 482 of Cr.P.C. for quashing of impugned order dated 04.12.2023 (Annexure P-5) passed by learned Additional Sessions Judge, Fast Track Court, Faridabad, whereby application filed by State under Section 216 Cr.P.C. for addition of charge has been allowed and consequently charge has been framed under Section 376(3) of IPC as alternative charge against petitioner but request of petitioner/accused to further cross-examine prosecution witnesses has been wrongly declined which requires quashing of said order being illegal, null and void and petitioner be given opportunity to re-examine the witnesses, as prayed for.

2. Learned counsel for petitioner argued that firstly petitioner was falsely implicated in FIR No. 105 dated 22.02.2019 under Section 363, 366-A of Indian Penal Code, 1860 (for short ‘IPC’) and Section 6 of Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’) (Annexure P-1). Said FIR was registered on the written complaint of father of victim. During investigation, statement of victim under Section 164 Cr.P.C. was recorded by Judicial Magistrate, which is Annexure P-2. After completion of investigation, challan was presented and chargesheet was framed on 08.05.2019 (Annexure P-3) under Section 363, 366A of IPC and Section 6 of POCSO Act. Learned counsel for petitioner has placed on record statements of witnesses recorded by trial Court (Annexure P-4) which indicates that 14 prosecution witnesses have already been recorded. Thereafter, prosecution filed application under Section 216 Cr.P.C. for amendment of charge at the stage when case was fixed for defence evidence. It is an admitted fact that learned counsel for petitioner/accused gave his no objection to application for amendment of charge and accordingly, application was allowed vide order dated 04.12.2023 (Annexure P-5) and amended chargesheet was framed on 04.12.2023 (Annexure P-6) vide which apart from aforesaid offences, charge in alternative under Section 376(3) of IPC was also framed.

After the amendment of chargesheet, learned Public Prosecutor gave statement that he does not want to lead any evidence to amended charge, whereas, learned counsel representing petitioner/accused wanted to cross-examine prosecution witnesses on the amended chargesheet. Said prayer of accused was declined by passing detailed order dated 04.12.2023, which is challenged by filing present petition.

3. Learned counsel for petitioner argued that fresh charge has been framed in alternative under Section 376(3) of IPC. Therefore, valuable right has accrued to accused to cross-examine prosecution witnesses and same right cannot be declined to petitioner. Learned trial Court without any valid justification declined the prayer of petitioner/accused. Learned counsel for petitioner referred to the provisions of Section 217 Cr.P.C. dealing with the recall of witness when charge altered. By relying upon said provision, it is argued that whenever the charge is altered or added by the Court after the commencement of trial, accused shall be allowed to cross-examine the witnesses already examined prior to amendment of chargesheet. Therefore, impugned order dated 04.12.2023 passed by learned trial Court is not on sound footing and same may kindly be set aside and petitioner/accused be given an opportunity to cross-examine the witnesses already examined on amended chargesheet vide which alternate charge has been framed under Section 376(3) IPC.

4. Learned counsel representing State opposed present petition taking the stand that order passed by learned Additional Sessions Judge, Fast T