1 2025:CGHC:9831 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 598 of 2025 1 - Neelkanth @ Neelu S/o Onkar Mahilang Aged About 19 Years R/o Khapridih-Khurd, P.S. Kharora, Dist. Raipur C.G. ... Petitioner(s) versus 1 - State Of Chhattisgarh Superintendent Of Police, Raipur, Dist. Raipur C.G. 2 - The Station House Officer Police Station, Kharora, Raipur, District Raipur (Cg) ... Respondent(s) For Petitioner(s) : Mr. Raza Ali, Advocate For Respondent(s) : Mr. G.L.Uike, Panel Lawyer Hon'ble Mr. Justice Arvind Kumar Verma Order on Board 27.02.2025 1. Heard. 2. This petition has been filed by the petitioner under Section 528 of Bhartiya Nagarik Suraksha Sanhita, 2023 by challenging the order dated 25.10.2024 passed by First Fast Track Special Court (POCSO), Raipur in Special Criminal Case No.58/22 wherein the application under Section 348 BNSS, 2023 has been rejected. 3. Fact of the present case in brief is that The petitioner's case involves 2 charges imposed after a charge sheet was filed, and the prosecution has presented evidence. Due to the petitioner's economic weakness, a legal aid advocate was appointed. However, communication issues between the counsel and petitioner hindered proper examination of the prosecutrix and her father. The petitioner's private counsel later identified discrepancies in the prosecutrix's birth year and school records, leading to an application for re-examination. The prosecution denied these claims, and the trial court rejected the application, citing detailed examinations of 10 witnesses. The petitioner argues that the trial court overlooked the inadequate examination due to communication issues between the legal aid counsel and petitioner. They emphasize the importance of re-examining the prosecutrix to establish her age, crucial for acquittal given the established consensual relationship. Hence this petition is filed. 4. Learned counsel for the petitioner submits that the petitioner further submits that, despite the discrepancy in the Dakhil Kharij register, re- examining the prosecutrix is crucial to establish her date of birth. This is particularly important since the legal aid counsel has established a consensual relationship, and for acquittal, it is essential to prove that the prosecutrix was a major at the time of the incident. However, the trial court failed to consider this. The petitioner argues that, regardless of the grounds presented to the trial court for re-examining the witnesses, a critical fact emerged from the prosecutrix's and her father's depositions. Specifically, no suggestions were made to dispute the accuracy of their stated dates of birth. The petitioner believes that it is essential to challenge these statements, and therefore, they should 3 be afforded the opportunity to re-examine the witnesses. However, the trial court refused this application, contrary to criminal jurisprudence. The petitioner submits that the case is still pending, with the prosecution evidence yet to be presented, and they have been incarcerated for over three years. They are willing to bear the expenses of re-examining the witnesses, which is necessary to clarify a specific point. The Constitution of India guarantees a fair trial to every person, as enshrined in the Criminal Procedure Code and the Bharatiya Nagrik Surakha Sanhita. Given the bona fide reasons, including the fact that the initial examination was conducted by the legal aid counsel, it is in the interest of justice to permit the petitioner to re-examine the prosecutrix and her father regarding the prosecutrix's age. Therefore, Annexure P/1 is liable to be quashed and application Annexure P/3 may be allowed in the interest of justice. 5. Learned counsel for the State supported the order passed by the trial court and submits that it is bad to call the prosecutrix for re-examination when there is no any new cause of action. He further submits that the witnesses the witnesses have already been cross examined sufficiently and there is not need to summon the victim again, therefore, this petition is liable to be dismissed. 6. I have heard learned counsel for the petitioner and perused the documents available on record. 7. Looking to the facts and circumstances of the case, it is shown that the date of birth of the prosecutrix is 30.10.2008. It is also apparent from the records that the witnesses, specially prosecutrix (PW-01) [Para- 27 4 to 29] and father of the prosecutrix (PW-02) [Para-18 to 20], have already been cross examined sufficiently on the point of date of birth of the prosecutrix and, in such a situation, it does not seem justified to summon the victim for cross-examination again. Consequently, this petition deserves to be and is hereby dismissed. Certified Copy as per rules. Sd/- Sd/- (Arvind Kumar Verma) Judge Saxena ABHIGYA SAXENA Digitally signed by ABHIGYA SAXENA