Devendra Kumar v. The State of Assam

ORDER Date : 28.02.2023 Heard Mr. N.K. Kalita, learned counsel for the petitioner. Also heard Mr. M.P. Goswami, learned APP appearing for the State. Page No.# 2/3

¶2By this criminal petition filed under section 482 Cr.P.C., the petitioner has prayed for quashing of the order dated 11.04.2022, passed by the learned Special Judge, POCSO, Kamrup (Metropolitan), Guwahati in Sessions Case No. 275/2018. By the impugned order, the cross-examination of PW-1 and PW-2 was dispensed with.

¶3The learned APP has opposed the prayer for quashing of the order dated 11.04.2022.

¶4By referring to the contents of the petition dated 11.04.2022, being petition nos. 320/2022 and 323/2022, the learned counsel for the petitioner has projected that till 12.00 noon of 12.04.2022, the prosecution witnesses were not present in the Court room and moreover, the learned counsel for the petitioner has prayed for dispensing with the personal appearance of the petitioner. Thereafter, at about 12.00 noon, when no PWs turned up, the counsel for the petitioner left home to take care of his mother and at about 12.45 PM, he received a phone call from the learned trial Court informing him to come and cross-examine the PW-1 and PW-2. The counsel representing the petitioner filed a petition at 2.30 pm praying for reserving the cross-examination, which was refused by the learned trial Court.

¶5The Court takes note of the fact that the petitioner is accused of offence committed under section 8 of the POCSO Act, under which the prescribed punishment is not less than 3 years and up to maximum 5 years of imprisonment.

¶6As the PW-1 and PW-2 were not present at 10.30 AM, the Court is of the considered opinion that on a payment of reasonable cost to cover for the Page No.# 3/3 flight fare to and fro from Mumbai, the ends of justice would be met by allowing the learned counsel for the petitioner to cross-examine PW-1 and PW-2.

¶7In view of above, the two-way cost of travel is assessed at Rs.12,500/- (Rupees twelve thousand five hundred only) per person. Accordingly, the petitioner is directed to deposit a sum of Rs.25,000/- (Rupees twenty five thousand only) before the learned trial Court. Subject to deposit being made on the next date fixed, the learned trial Court shall fix a date for appearance for the PW-1 and PW-2 and for their cross-examination.

¶8With the aforesaid observation, the impugned order dated

11.04.2022, insofar as it relates to closing opportunities to cross-examine PW-1 and PW-2 is conditionally set aside on condition that the cost be deposited positively on the next date fixed before the learned trial Court. It is provided that this order shall lapse and loose its efficacy if such cost is not deposited on the next date, and the impugned order shall stand restored.

¶9The petitioner shall appear before the learned trial Court on

15.03.2023, which is the next date fixed and produce a certified copy of the order along with the deposit.

¶10Accordingly, this criminal petition stands conditionally allowed to the extent as indicated above.

JUDGE Comparing Assistant

Page No.# 1/3 GAHC010102872022 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./487/2022 DEVENDRA KUMAR S/O SHRI MANGEY RAM PERMANENT ADDRESS- VILL AND P.O. PURBALIYAN DIST. MUZZAFARNAGAR UTTAR PRADESH, PIN-251203 PRESENTLY RESIDNG AT- 8 SF, GREEN VIEW 1 A TO Z COLONY, MEERUT MODIPURAM UTTAR PRADESH, PIN-250110 VERSUS THE STATE OF ASSAM REP. BY THE PP, ASSAM Advocate for the Petitioner : MR. N K KALITA Advocate for the Respondent : PP, ASSAM BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA