This petition is filed under Section 482 of Code of

Criminal Procedure, 1973 (for short hereinafter referred to

as 'Cr.P.C.') praying to set aside the order dated

12.08.2022 passed in Spl.C.POCSO No.22/2022 by the

Additional

District

and

Sessions

Judge

and

FTSC-I

(POCSO), at Kalaburagi.

2.

It is contended that the petitioner was charged

for the offences punishable under Sections 354(a) 354(d),

504, 506, 109, 450, 376(3) r/w 34 of Indian Penal Code

(for short hereinafter referred to as 'IPC') and Sections 4,

12, 14 and 17 of Protection of Children from Sexual

Offences Act, 2012 (for short hereinafter referred to as

'POCSO Act'). There are two accused involved in the crime.

Out of them, the petitioner is arraigned as accused No.1.

3.

Heard Sri. Nandkishore Boob, learned counsel

for the petitioner and Sri. Veeranagouda Malipatil, learned

High Court Government Pleader for respondent/State.

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4.

It is stated that the evidence of PW.1 was

recorded on 25.04.2022, partly. Thereafter the counsel for

the petitioner/accused No.1 prayed time for further cross-

examination and same is allowed with a cost of Rs.1,000/-

and the case was adjourned to 11.07.2022. Further on

11.07.2022, again time was prayed, hence, the trial court

taken the cross-examination of PW.1 as nil and posted the

matter to 01.08.2022. In the meanwhile, the accused filed

an application under Section 311 of Cr.P.C., on 26.07.2022

seeking to recall PW.1. By the impugned order dated

12.08.2022, the trial court has dismissed the said

application by imposing cost of Rs.5,000/- on the

petitioner/accused No.1 to be payable to victim/PW.1. The

learned counsel argued that earlier advocate for the

petitioner retired from the case and he has engaged new

counsel who filed vakalth on 24.06.2022 and as the

accused is in custody, he has to seek instructions, he

sought time before the Trial Court when the case was

posted on 01.08.2022, but the said prayer was rejected.

Hence, he filed this petition praying to recall the PW.1 for

further cross-examination.

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5.

I have perused the order sheet and order

passed by the Trial Court.

6.

The trial Court has referred to the provisions of

Section 33(5) of the POCSO Act, regarding need for

examination of victim at the earliest. It appears that the

case was adjourned thrice at the request of the

petitioner/accused No.1. In spite of imposing cost, he has

not chosen to cross-examine the victim. On the other

hand, he went on seeking adjournments for one or the

other reason. Learned counsel for the petitioner argued

that if the witness is not recalled, the petitioner/accused

No.1 who is in custody will be put to hardship. There is a

chance of himself being convicted, if the evidence of PW.1

is not recalled. Learned counsel also stated that the case

was advanced to earlier date and the application was filed

for recalling the witness only with an intention to cross-

examine PW.1. It is only on the ground of ill-health of the

counsel for the petitioner/accused No.1, the case was

adjourned on several dates, but for the said reasons, the

accused should not be put to hardship.

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7.

Learned counsel also relied on the decisions of

Coordinate Bench of this Court in Crl.P.No.200639/2018

dated

18.07.2018,

Crl.P.No.201082/2018

dated

27.11.2018 and Crl.P.No.200558/2019 dated 20.01.2020.

The Coordinate Bench of this Court allowed the above said

petitions

and

permitted the accused

to

recall the

witnesses.

8.

It is necessary to refer to the provision of

Section 311 of Cr.P.C., which provides for recalling of the

witnesses, power to summon material witness, or examine

person present. It is clear that the Court has been

empowered to summon any person as a witness at any

stage of inquiry, trial or other proceeding. The power is not

confined to any particular class or person. The said

provision gives power to Court to summon and examine

and recall and re-examine any such person if his evidence

appears to be essential for just decision of the case.

Section. 311 of Cr.P.