Neutral Citation No. - 2025:AHC:25227 Court No. - 71 Case :- APPLICATION U/S 482 No. - 44554 of 2024 Applicant :- Atish Alias Sonu Opposite Party :- State of U.P. and Another Counsel for Applicant :- Satyam Narayan Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. 1. Heard Mr. Satyam Narayan, the learned counsel for applicant and the learned A.G.A. for State-opposite party-1. 2. Perused the record. 3. On the matter being taken up, the learned A.G.A. submits that notice of this application has been served upon first informant- opposite party-2 on 19.12.2024. However, in spite of service of notice, neither any counter affidavit has been filed by first informant-opposite party-2 in opposition to this application nor any one has put in appearance on his behalf to oppose this application, even in revised call. 4. Applicant-Atish @ Sonu, who is a charge sheeted accused, has approached this Court by means of present application under Section 482 Cr.P.C. with the following prayer:- "It is, therefore most respectfully prayed that this Hon'ble court may graciously be pleased to allow this application and further be pleased to quash order dated 27.11.2024 passed by Additional Sessions Judge/ Special Judge, (POCSO Act), Court No.3, Meerut, in POCSO Case No.119 of 2018, Arising out of Case Crime No.83 of 2018 (State Vs. Atish @ Sonu), under section 363,375(6),376 of IPC and Section 3/4 of POCSO Act Police Station Hastinapur, District Meerut and also be direct to the concerned court to recall the P.W.2 namely Km. Sonia for cross examination.. It is further be pleased to stay the further proceeding of the POCSO Case No.119 of 2018, Arising out of Case Crime No.83 of 2018 (State Vs. Atish @ Sonu), under section 363,375(6),376 of IPC and Section 3/4 of POCSO Act Police Station Hastinapur, District Meerut pending in the court of Additional Sessions Judge/ Special Judge, (POCSO Act), Court No.3, Meerut during the pendency of the instant case before this Hon'ble court, And/Or to pass such other and further order or direction as this Hon'ble Court may deem fit and proper under the facts and circumstances of the case." 5. Learned counsel for applicant submits that during pendency of aforementioned Sessions Trial, applicant filed an application dated 27.11.2024 under Section 348 BNSS praying therein that the prosecutrix PW-2 be recalled as certain questions could not be put to her at the time of her cross examination. It is apposite to mention here that the questions proposed to be put to the prosecutrix have been detailed in aforesaid application. However, Court below, on an erroneous view of the matter, has rejected the said application. 6. In the submission of the learned counsel for applicant, the order impugned is not only illegal but also arbitrary. He contends that admittedly, the trial before Court below is that of the accused- applicant. Such a trial could be a free and fair trial. Principles of natural justice require that justice should not only be done but also seen to be done. In case, liberty is granted to the applicant to cross examine the prosecutrix-PW-2, with reference to the questions proposed in the application filed under Section 348 BNSS, no prejudice can be said to be caused to the prosecution. Furthermore, the proposed questions put to the prosecutrtix will only enable the Court to find out the truth of the matter, which ultimately is the object of trial. He, therefore, submits that the order impugned is, therefore, liable to be set aside by this Court. 7. Per contra, the learned A.G.A. representing State-opposite party- 1 has vehemently opposed the present application. According to the learned A.G.A., the order impugned is perfectly just and legal and therefore, the same is not liable to be interfered with. Learned A.G.A. then invited the attention of Court to the provisions contained in Section 33(5) of the POCSO Act and on basis thereof, he submits that the Act itself restrains the Court from calling the prosecutrix repeatedly. He has then referred to the order impugned and with reference to the same, the learned A.G.A. submits that the statement-in-chief of the prosecutrix was recorded on 28.07.2022. Thereafter, the examination-in-chief of the prosecutrix was concluded on 29.07.2022. The prosecution evidence was closed on 28.07.2023. Thereafter, the statement of accused-applicant was recorded on 19.10.2023 in terms of Section 313 Cr.P.C. After expiry of a period of almost one year and one month from the date on which, the statement of accused-applicant was recorded under Section 313 Cr.P.C., the application dated 27.11.2024 under Section 313 Cr.P.C. was engineered by the applicant. Court below has further returned a finding that at the stage of final hearing, the accused-applicant changed his counsel and aforementioned application was filed by another counsel engaged by applicant. He, therefore, contends that aforementioned application was primarily filed to delay the conclusion of trial. On the above premise, the learned A.G.A. submits that no illegality or infirmity can be attached to the order impugned in present application. As such, the present application is liable to be dismissed by this Court. 8. Having heard the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and upon perusal of record, this Court finds that prima-facie there is no bona-fide of applicant in filing the application dated 27.11.2024 under Section 348 BNSS. When the veracity of the application under Section 348 BNSS filed by applicant with reference to the deposition of the prosecutrix as recorded before Court below is examined in the light of parameters laid down by the Apex Court in the case of Raja Ram Prasad Yadav Vs. State of Bihar and Another (2013) 14 SCC 461, this Court finds that the said application was lacking bona- fide. In view of above, no illegality can be said to have been committed by Court below in passing the order impugned. 9. As a result, the present application fails and is liable to be dismissed. 10. It is, accordingly, dismissed. Order Date :- 20.2.2025 Vinay Digitally signed by :- VINAY KUMAR High Court of Judicature at Allahabad