2025:UHC:6231 HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Revision No. 324 of 2024 17 July, 2025 Naved --Revisionist Versus State of Uttarakhand --Respondent ---------------------------------------------------------------------- Presence:- Mr. D.N. Sharma, learned counsel for the revisionist. Mr. Bhaskar Chandra Joshi, learned A.G.A. for the State of Uttarakhand/respondent. Hon’ble Pankaj Purohit, J. (Oral) By means of the instant criminal revision, the revisionist has put to challenge the impugned judgment and order dated 23.09.2022 passed in Special Sessions Trial No.146 of 2022 State Vs. Naved, pending in the Court of learned FTC/ Additional Sessions Judge/Special Judge (POCSO), Rudrapur, District Udham Singh Nagar, for the offence punishable under Sections 363, 366, 376(2) IPC and under Section 5/6 of the Protection of Children from Sexual Offence (POCSO) Act, 2012, whereby, the application filed by the revisionist under Section 311 Cr.P.C. was rejected. 2. Learned counsel for the revisionist submits that the previous counsel for the revisionist could not appear before the learned Trial Court due to some personal reason, therefore, the cross-examination of PW-1 and PW-2 was not held. Then, the another counsel for revisionist filed an application under Section 311 Cr.P.C dated 22.08.2022 seeking permission to cross-examine the PW-1 and PW-2, before the learned FTC/Additional Sessions 1 2025:UHC:6231 Judge/Special Judge (POCSO), Rudrapur, District Udham Singh Nagar. The cross-examination of PW-1 and PW-2 are relevant and germane for proper adjudication of the case, but learned Trial Court did not consider this aspect of the matter and rejected the application filed under Section 311 Cr.P.C. vide its order dated 23.09.2022 stating that the intention of the revisionist was to harass the victim by calling her again and again before the Court, which is not acceptable under provisions of POCSO Act and the witnesses were deliberately not cross-examined. 3. Learned counsel for the revisionist further submits that the learned Court below without considering the facts and in a routine manner rejected the application of the revisionist filed under Section 311 of Cr.P.C. By rejecting the application of the revisionist, the learned Trial Court had erred in law, the opportunity had been closed which amounts to gross miscarriage of justice to the revisionist. He also submits that there is no material evidence to connect the revisionist with the alleged crime. 4. Per contra, learned State Counsel submitted that the learned Trial Court has rightly rejected the application under Section 311 Cr.P.C. filed by the revisionist, as even after getting multiple opportunities, learned counsel for the revisionist had failed to cross- examine PW-1 and PW-2. 5. Learned counsel for the revisionist made an innocuous prayer that the ends of justice would be met, if one last opportunity is given to cross-examine the witnesses-PW-1 and PW-2. 2 2025:UHC:6231 6. Heard learned counsel for the parties and perused the impugned judgment and order dated 23.09.2022. From perusal of the judgment and order dated 23.09.2022 impugned, the reasons have been cited by the learned Trial Court for rejecting the application under Section 311 Cr.P.C. that the victim- PW-1 under the POCSO Act cannot be called again and again before the learned trial Court, as PW-1 (victim) and PW-2 (complainant, mother of the victim) were present on 04.07.2022 and 25.07.2022, but, on the said dates, intentionally they have not been cross- examined. This reasoning, at the first blush, appears sound and convincing, but, if this Court look at the right of both the victim as well as the revisionist- accused vis-a-vis., the right to get a fair trial, weighs much in favour of the revisionist-accused, who himself is a juvenile (child in-conflict with law) as reflected from the impugned order. If the revisionist is not provided opportunity to cross-examine PW-1 (victim) and PW-2 (complainant, mother of the victim) the trial cannot be said to be a fair trial and would become a farce trial. Moreover, these witnesses could not have been examined for to the reason that counsel of the revisionist did not turn up and later on, the subsequent counsel for revisionist had moved an application under Section 311 Cr.P.C. Thus, this Court is not in agreement with the reasoning given by the learned Trial Court and is of the opinion that the judgment and order impugned deserves inference by this Court. 3 2025:UHC:6231 7. Accordingly, the present criminal revision is allowed. The impugned judgment and order dated 23.09.2022 passed in Special Sessions Trial No.146 of 2022 State Vs. Naved, pending in the Court of learned Special Judge (POCSO), Rudrapur, District Udham Singh Nagar, is accordingly set aside. The application 48kha filed under Section 311 Cr.P.C. is allowed. In the interest of justice, the revisionist shall get an opportunity to cross-examine the PW-1 (victim) and PW-2 (complainant), to get a fair chance of defending him. Learned Trial Court shall fix a date after summoning PW-1 and PW-2 on that date, the revisionist shall be given an opportunity to cross- examine PW-1 (victim) and PW-2 (complainant). 8. Registry is directed to send a certified copy of this order to the learned Trial Court to proceed with the case forthwith. (Pankaj Purohit, J.) 17.07.2025 PN 4 PREETI NEGI Digitally signed by PREETI NEGI DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=63c75a8c4765581180a58d7478fadbe3 8331bac55c78b5f9f0276c16432f6aab, postalCode=263001, st=UTTARAKHAND, serialNumber=2BA53171893B3C3CB3CCCAE81F AE064498483A83D84BDB0F9229D5BF08D959A C, cn=PREETI NEGI Date: 2025.07.19 11:07:37 +05'30'