1 2025:CGHC:2693 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 172 of 2025 1 - Kundan Sahu S/o Tilak Sahu Aged About 27 Years R/o 225/a, Ward No. 09, Barauda, Dist. Raipur ( C.G. ) --- Petitioner(s) versus 1 - State Of Chhattisgarh Through The P.S. New Rajendra Nagar, Dist. Raipur ( C.G. ) --- Respondent(s) For Petitioner(s) : Mr. N. Naha Roy, Advocate For Respondent(s) : Mrs. Binu Sharma,. Panel Lawyer Hon’ble Shri Justice Arvind Kumar Verma Order on Board 16/01/2025 1. With the consent of the parties the matter is heard finally. 2. The present petition is filed under Section 528 of BNSS, 2023 to set-aside the order dated 27.11.2024 passed by the learned Additional Sessions Judge Second (POCSO) FAST TRACK 2 Special Court, Raipur (C.G.) in Special Criminal Case No. 20/2021. 3. Brief facts of the case are that the petitioner is being subjected to a criminal trial in a Special Criminal Case No. 20/2021 before the learned Additional Sessions Judge Second (POCSO) FAST TRACK Special Court, Raipur (C.G.) under Sections 354, 354(k) of the IPC, 1860 and Sections 7, 8,11 and 12 of POCSO Act, 2012. In the course of the trial proceedings, on 27.11.2024, the matter was kept for evidence of the witness being PW-1. After the examination-in-chief, the cross-examination had to take place and the same was fixed for 3:00 PM. However, at 3:30 PM and thereafter till 5:00 PM, the defence counsel was unable to attend the trial proceedings to cross-examine the witness being PW- 1(victim). The Trial Court after observing the unavailability of the defense counsel to turn up, went on to pass the order dated 27.11.2024 stating therein that the defence counsel does not have any inclination to attend the trial proceedings and has also remained absent in the past two dates, i.e., 13.08.2024 and 20.08.2024, and as such went on to close the opportunity for the petitioner herein to cross-examine the witness being PW-1 (victim). 4. Learned Counsel for the petitioner submits that the learned Trial Court utterly failed to appreciate the law the right to cross- examine the witnesses by the accused to test the correctness and the veracity of the evidence is a fundamental right of fair trial 3 guaranteed to the petitioner herein under Article 21 of the Constitution of India and such denial by the learned Trial Court by closing the opportunity to cross-examine the witness being PW-1 (Victim) is a violation of that fundamental right. 5. Learned State counsel submits that the Trial Court has given ample opportunity to the petitioner to cross-examine the victim but his counsel remained absent after which the Trial Court has closed the opportunity. 6. I have heard learned counsel for the parties and perused the record with utmost circumspection. 7. On perusal of record it transpires that the petitioner was facing a criminal trial in a Special Criminal Case No. 20/2021 before the learned Additional Sessions Judge Second (POCSO) FAST TRACK Special Court, Raipur (C.G.) under Sections 354, 354(k) of the IPC, 1860 and Sections 7, 8, 11 and 12 of POCSO Act, 2012. In the course of the trial proceedings, on 27.11.2024, the matter was kept for evidence of the witness PW-1 (victim). After the examination-in-chief, the cross-examination had to take place and the same was fixed for 3:00 PM. However, at 3:30 PM and thereafter till 5:00 PM, the defence counsel did not attend the trial proceedings to cross-examine the witness being PW-1(victim). As a result of which the Trial Court after observing the unavailability of the defense counsel to turn up, went on to pass the order dated 27.11.2024 stating therein that the defence counsel does not have any inclination to attend the trial proceedings and has 4 also remained absent in the past two dates, i.e., 13.08.2024 and 20.08.2024, and as such went on to close the opportunity for the petitioner herein to cross-examine the witness being PW-1 (victim). 8. Considering facts of the case, submission made by counsel for the petitioner that petitioner wants to cross-examine the victim in order to bring on record correct facts and also just and proper disposal of the trial, I am inclined to allow this petition. 9. Accordingly, present petition is hereby allowed. Impugned order dated 27.11.2024 (Annexure A-1) is hereby set aside and the petitioner is granted one last opportunity to cross-examine the witness (PW-1) subject to payment of Rs.5,000/- to the victim as traveling allowances and other requisite expenses. Trial Court concerned is directed to permit the petitioner to cross-examine the victim only as a last opportunity. 10.The Trial Court shall ensure the compliance of Section 33(5) of POCSO Act, 2012 and shall give only one date of hearing to cross-examine the victim as a last opportunity and petitioner shall appear on the date given by the trial court. No further opportunity shall be given to the petitioner to cross-examine the victim whatsoever be the reason and the Trial Court shall proceed with the trial. Sd/- (Arvind Kumar Verma) JUDGE Madhurima