HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 19176 of 2025 Court No. - 81 HON'BLE AVNISH SAXENA, J. 1. Sri Rohit Kumar Pandey, learned counsel appears for applicant-accused and submits that the accused was in jail while statement of victim, PW-1 has been recorded by the Trial Court on 08.01.2025, but the opportunity to cross-examine PW-1 was not provided and was closed by the same order. The applicant-accused has moved application on the same day for providing opportunity to cross-examine the Prosecution Witness-1 but the Trial Court without considering the facts mentioned by the applicant rejected the application on 04.02.2025, which is assailed in this application under Section 528 B.N.S.S. as the order is travesty of justice, hence he seeks interference of this Court. 2. Learned A.G.A. for the State is present. 3. There is no point in issuing notice to opposite party no.2, as the intrinsic and intricate right of the accused-applicant to cross-examine the witness is at stake, which is to be decided at an early date. 4. None appeared for opposite party nos. 3 and 4. 5. Learned A.G.A. submits that the deposition of the witness, victim has been recorded by the Trial Court and the opportunity has been closed specifically mentioning that it is 3.45 p.m. and there is no one to cross- examine the prosecution witness, which led the Trial Court to close the opportunity. 6. This Court has taken into consideration submissions made by the parties and perused the record. Versus Counsel for Applicant(s) : Rohit Kumar Pandey Counsel for Opposite Party(s) : G.A. Gobinda .....Applicant(s) State Of U.P. And 3 Others .....Opposite Party(s) 7. It is the submission of learned counsel for the applicant that in the first half of the court proceedings, the trial court has recorded evidence of PW-1. In the first half the court informed the counsel for the applicant that statement of victim recorded under Section 164 Cr.P.C. is to be requisitioned, as such the evidence is to continue after the recess. The counsel for the applicant was not knowing as to whether the statement under Section 164 Cr.P.C. has been requisitioned or not, but there is specific mention in the order-sheet of 08.01.2025 that statement of victim recorded under Section 164 Cr.P.C. is taken on record. Learned counsel has drawn attention of this Court towards order dated 08.01.2025 passed by the Trial Court to show that it is on the same day that statement of victim (PW-1) recorded under Section 164 Cr.P.C. has been taken on record. 8. This Court has taken into consideration that on 08.01.2025 deposition of victim (PW-1) has been recorded. There is no order in the order-sheet for requisition of statement of victim recorded under Section 164 Cr.P.C., though the order-sheet reveals that the same is taken on record, the same day. The deposition of PW-1, which is annexed at page no.37 of the application, does not reveal the time of recording of examination-in-chief, there is specific mention that it is 3.45 p.m. and there is no one for the applicant-accused for cross-examination as such opportunity to cross- examine is closed. This itself, prima facie, reveals that statement of witness has been recorded in absence of the accused or his counsel, which is necessary prerequisite of Section 273 Cr.P.C. Further glaring fact revealed from the record is that the application for granting permission to cross- examine PW-1 has been moved on 08.01.2025, on the same day when the witness was present and the accused was shown present from the jail but the Trial Court has not decided the application, which has been decided on later date i.e. 04.02.2025. It apparently shows the travesty of justice. There is no reason assigned by the Trial Court, which would show dilatory act on the part of the applicant in not appearing before Trial Court for cross- examination. 9. The observation of the Trial Court that victim may not be called in the Court repeatedly for her examination can not be considered to be just and proper observation, as the Court was left with time to call the counsel, which is not reflected from the order-sheet. 10. The order dated 04.02.2025 passed by Trial Court (Special Judge NA528 No. 19176 of 2025 2 (POCSO Act)/Additional Session Judge, Ghaziabad) in S.T. No.123 of 2024 (State Versus Gobinda) arising out of Case Crime No.70 of 2024 under Sections 363, 376 I.P.C. Section 3/4(2) of POSCO Act, Police Station Muradnagar, District Rural (Commissionerate Ghaziabad), is liable to be aside. The same is hereby set aside. 11. The Trial Court is directed to summon the witness PW-1. The witness money shall be paid by the Court to the witness. The opportunity to cross- examine PW-1 is revived. 12. The application is, accordingly, allowed. October 13, 2025 MN/- NA528 No. 19176 of 2025 3 (Avnish Saxena,J.) Digitally signed by :- MAHENDRA NATH High Court of Judicature at Allahabad