R/SCR.A/2173/2025 ORDER DATED: 31/07/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 2173 of 2025 ============================================ MAULIK CHHANABHAI BHARWAD Versus STATE OF GUJARAT & ANR. ============================================ Appearance: MR KEVAL G BRAHMBHATT (BAROT)(9900) for the Applicant(s) No. 1 MR. ALPESH M. SOLANKI(16030) for the Applicant(s) No. 1 NOTICE SERVED THRU CONCERNED POLICE STATION for the Respondent(s) No. 2 MS SHRUTI PATHAK, APP for the Respondent(s) No. 1 ============================================ CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Date : 31/07/2025 ORAL ORDER 1. By way of present petition under Articles 226 and 227 of the Constitution of India, the petitioner has sought following relief: “B) Allow this Special Criminal Application by quashing and setting aside the impugned order dated 27.01.2025 passed by the Ld. District and Sessions Court, Viramgam under Exhi.23 and further be pleased to reopen the right to Cross examination of the prosecution witness in Sp. POCSO no.13/2022 in the interest of justice.” 2. The respondent no.2 remained personally present and he has no objection if the right to cross examine prosecution witness is reopened. 3. Learned APP has opposed the present petition on the ground that the complainant having no locus to give any consent and only the State has to oppose the petition. Learned APP has further stated that with ulterior motive the petition is filed and R/SCR.A/2173/2025 ORDER DATED: 31/07/2025 the petitioner will tamper with the evidence if the right to cross- examine the prosecution witness is re-opened. Hence, she has requested to dismiss the present petition. 4. Having heard both the learned Advocates for the parties, prima facie it appears that total 4 witnesses were summoned but only 3 witnesses came to be examined and chief examination of Prosecution Witness No.4 – Mohammad Yunus Usmangani Adi (Muslim) at Exhibit 16 is recorded on 10.12.2024 and cross examination was kept in second session. Thereafter, application at Exhibit 15 was filed. It is needless to say that once the witness has remained present, it is the duty of the learned Advocate to cross examine the witness and merely because he is engaged in another Court, is not a ground to seek adjournment. At the same time, only the chief examination of the said witness is recorded and not tested on the anvil of the cross examination and definitely it would adversely affect the defence of the accused and fair trial if re-opening of cross-examination of prosecution witness is not permitteed. Even otherwise, the complainant is having no objection. Considering the aforesaid fact if the right of the petitioner to cross examine the prosecution witness is reopened then it will not cause harassment to the witness. In the cross-examination whatever the witness may depose or say the prosecution will have ample opportunity to re-examine the witness. 5. Considering the aforesaid facts, without discussing further on merits, present petition is allowed. Hence, order below Exhibit 23 dated 27.01.2025 passed in Special POCSO Case No.13 of 2022 by the learned Additional District & Sessions Judge, R/SCR.A/2173/2025 ORDER DATED: 31/07/2025 Viramgam is hereby quashed and set aside and the right to cross-examine the Prosecution Witness No.4 is reopened. The learned 8th Additional Sessions Judge, Viramgam is directed to reopen the right of the petitioner to cross-examine the prosecution witness no.4 on next date of hearing. 6. Accordingly, the present petition is disposed of. Notice is hereby discharged. (HASMUKH D. SUTHAR, J.) ANKIT Original copy of this order has been signed by the Hon'ble Judge. Digitally signed by: ANKIT YOGESHBHAI JANSARI(HCW0109), ENGLISH STENOGRAPHER GRADE I, at High Court of Gujarat on 31/07/2025 18:29:33