HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 34409 of 2025 Court No. - 79 HON'BLE ALOK MATHUR, J. 1. Heard Sri Abhinava Awasthi, Advocate holding brief of Sri Shailendra Kumar Tripathi, learned counsel for the applicant as well as learned A.G.A. for the State of U.P. 2. By means of present application under Section 528 of BNSS the applicant has assailed the order dated 21.08.2025, passed by the Special Judge (POCSO Act), Court No. 1, Pilibhit in Special Sessions Trial No. 1602 of 2022 - State Vs. Bhagwat Saran and Others, arising out of Case Crime No. 391 of 2022, under Sections 376D, 506 IPC and Section 5/6 of POCSO Act and Section 3(2)V of SC/ST Act, Police Station -Jahanabad, District - Pilibhit, whereby the application of the applicant under Section 311 of Cr.P.C. for cross examination of PW-5 has been rejected. Versus Counsel for Applicant(s) : Shailendra Kumar Tripathi Counsel for Opposite Party(s): G.A. Bhagwat Saran .....Applicant(s) State Of U.P. And 3 Others .....Opposite Party(s) 3. It has been submitted by learned counsel for the applicant that applicant is an accused in Case Crime No. 391 of 2022, under Sections 376D, 506 IPC and Section 5/6 of POCSO Act and Section 3(2)V of SC/ST Act, Police Station -Jahanabad, District - Pilibhit. It is next submitted that during the trial, PW-5 - Investigating Officer was produced by the prosecution whose examination-in-chief was recorded on 15.05.2025. It is stated that after closing the examination-in-chief, cross examination of PW-5 could not be done inasmuch as, learned counsel for the applicant was not available because pairokar was not available and consequently, learned counsel could not appear on behalf of accused to cross examine PW-5. 4. It is further submitted by learned counsel for the applicant that on 15.05.2025, the applicant was in custody during the trial, who secured bail on 31.07.2025 and after being enlarged on bail, the applicant moved an application under Section 311 Cr.P.C. on 21.08.2025 for recalling PW-5 for cross examination. 5. It is submitted on behalf of applicant that by mean of impugned order dated 21.08.2025, the application of application has been rejected only on the ground of the fact that the applicant who is accused in the said case was delaying the trial and it is on this account, his application has been rejected on 21.08.2025. 6. Learned counsel for the applicant has submitted that NA528 No. 34409 of 2025 2 trial is still under way and prosecution evidence is being recorded and consequently, it cannot be said that non appearance on behalf of applicant on 15.05.2025, was only with a view to delay the trial. It is further submitted that serious prejudice will be caused to the accused in case PW-5 is not permitted to be cross examined by the applicant and therefore in the aforesaid circumstances, has submitted to set aside order dated 21.08.2025 and submits that this Court may impose any condition on the applicant to enable him to cross examine PW-5. 7. Learned A.G.A. on the other hand has opposed the writ petition but does not dispute the aforesaid facts. 8. After hearing learned counsel for the parties, it is noticed that trial is proceeding against applicant under Sections 376D, 506 IPC, Section 5/6 of POSCO Act and Section 3(2)V of SC/ST Act. Considering the submissions of learned counsel for the applicant that examination-in-chief was conducted on 15.05.2025, but on the said date pairokar of the applicant could not appear and consequently, learned counsel appearing for the applicant could not cross examine PW-5 and subsequently, cross examination was closed and case was fixed for evidence of he next prosecution witness. 9. Also considering the aspect that prosecution witnesses are still being examined, this Court finds that trial will not be effected in case applicant is permitted to cross examine PW-5. This Court do not agree with the NA528 No. 34409 of 2025 3 reasoning given by the trial Court for rejection of application under Section 311 Cr.P.C. 10. It is only in case application could have been made after extremely long delay and delay would not have been duly explained, then certainly inference could have been drawn that delay is being caused to the trial at the behest of the accused-applicant. 11. In the present case, facts are slightly different as this Court has also noticed that prosecution witnesses are still being examined. 12. Accordingly, in the aforesaid circumstances, this Court finds that impugned order dated 21.08.2025, passed by the trial Court is arbitrary and accordingly deserves to be set aside. 13. Accordingly, impugned order dated 21.08.2025, is set aside. The trial Court is directed to secure presence of PW-5 - Investigating Officer and fix a date for his cross examination. In case, PW-5 appears on the date fixed, applicant shall be permitted to cross examine him on the said date and case will not be adjourned on any ground on the said date. But, in case PW-5 does not appear then, trial Court shall be at liberty to fix another date and proceed with the trial in accordance with law. 14. The applicant undertakes to cooperate in the trial proceedings and shall not take any unnecessary adjournment. NA528 No. 34409 of 2025 4 15. Subject to the aforesaid directions, present application stands allowed. September 17, 2025 A. Verma NA528 No. 34409 of 2025 5 (Alok Mathur,J.) Digitally signed by :- ANURAG VERMA High Court of Judicature at Allahabad