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Allahabad High Court

KRISHNA MALLAHversusSTATE OF U.P. AND ANOTHER

Decided

Holding

The court held that denying further cross‑examination of the child victim violated the accused's right to a fair trial, and therefore the order rejecting the Section 311 application was set aside.

Summary

The applicant filed an application under Section 528 of the Bhartiya Nagrik Suraksha Sanhita, 2023 seeking to quash a Special Judge's order that rejected a Section 311 CrPC application for further cross‑examination of the child victim (PW‑1). The trial court had relied on Section 33(5) of the POCSO Act to deny additional cross‑examination, arguing that repeated testimony would prejudice the child. The applicant contended that this denial violated the principles of a fair trial and the accused's right to a proper defence. The High Court examined precedents on fair trial, especially the Supreme Court decisions in Dr. Rajesh Talwar and Natasha Singh, emphasizing the discretionary power under Section 311 CrPC to allow fresh examination when justice demands. Holding that the trial court erred, the High Court set aside the order dated 19‑Feb‑2025 and directed the trial court to summon PW‑1 for further cross‑examination without unnecessary adjournments. The application was therefore allowed.

Issues considered

  • The trial court's reliance on Section 33(5) of the POCSO Act to refuse further cross‑examination of a child witness.
  • Whether the accused's right to a fair trial under Article 21 mandates granting a fresh opportunity for cross‑examination under Section 311 CrPC.
  • The scope of discretionary power of the court to recall witnesses after a considerable lapse of time.

Legislation cited

Subjects

  • fair trial
  • cross‑examination
  • Section 311 CrPC
  • POCSO Act
  • child witness
  • right to defence
  • Section 528 BNSS
  • criminal procedure

Judgment

         HIGH COURT OF JUDICATURE AT ALLAHABAD

           APPLICATION U/S 528 BNSS No. - 12505 of 2026

Krishna Mallah
                                                              .....Applicant(s)
                                   Versus
State of U.P. and Another
                                                                 .....Opposite
                                                                       Party(s)

Counsel for Applicant(s)                          :    Balbeer Singh
Counsel for Opposite Party(s)                     :    G.A.

Court No. - 77
              HON'BLE SANJAY KUMAR PACHORI, J.

1. Shri Balbeer Singh, learned counsel for the applicant and Shri Chhavi Pal
Singh, learned A.G.A. for the State are present. Despite service of notice
upon Opposite Party No. 2, None appears on his behalf.

2. The present application under Section 528 of Bhartiya Nagrik Suraksha
Sanhita, 2023 has been filed by the applicant to quash the order dated
19.2.2025 passed by Special Judge (POCSO Act), Court No. 30, Agra in
Special Case No. 4123 of 2018, arising out of case crime No. 823 of 2018,
under Sections 363, 376, 328, 506, 120-B, I.P.C., Section 3/4 of Protection
of Children from Sexual Offences Act and Section 3(2)(v) of Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, Police Station-
Etmadaula, District Agra, whereby an application under Section 311, Cr.P.C.
(Section 348, BNSS) has been rejected.

3. Learned counsel for the applicant submits that the impugned order has
been passed without considering the facts, circumstances and position of
law. It is further submitted that the application in question dated 20.11.2024
has been filed by the present applicant after death of his earlier advocate to
call PW-1/victim for cross-examination after closing the opportunity of
cross-examination to PW-1.

4. Learned A.G.A. has not denied the factual matrix of the case at this
stage.

5. The trial court observed that examination-in-chief of PW-1 was recorded
on 7.2.2023 and 22.2.2023 and the cross-examination of the PW-1 was
deferred on 28.3.2023 on the basis of moving adjournment application by
the present applicant. The trial court while passing the impugned order
                                                            NA528 No. 12505 of 2026
                                 2


mentioned the provision of Section 33(5) of the POCSO Act wherein it is
provided that the Special Court may ensure a child victim or witness is not
called repeatedly to testify in court.

6. There is no other point for consideration to give opportunity to cross-
examine PW-1, Victim. Due to this reason, the opportunity to hear Private-
Opposite Party No. 2 is dispensed with.

7. In Dr. Rajesh Talwar and another Vs. C.B.I. and another, (2014) 1
SCC 628, the Supreme Court considered the issue of fair trial observing in
Para 10, which is as under:

         "10. This Court in Selvi J. Jayalalithaa & Ors. v. State of Karnataka
         & Ors. (Writ Petition (Crl.) No.154 of 2013) decided on 30.9.2013,
         after referring to its earlier judgments in Triveniben Vs. State of
         Gujarat, AIR 1989 SC 1335; Zahira Habibullah Sheikh and Another
         Vs. State of Gujarat and others, AIR 2006 SC 1367; Capt.
         Amarinder Singh Vs. Prakash Singh Badal & Ors., (2009) 6 SCC
         260; Mohd. Hussain @ Julfikar Ali v. State (Govt. of NCT of Delhi),
         AIR 2012 SC 750; and Natasha Singh Vs. CBI (State), (2013) 5 SCC
         741, dealt with the issue of fair trial observing:

              Fair trial is the main object of criminal procedure and
              such fairness should not be hampered or threatened in
              any manner. Fair trial entails the interests of the accused,
              the victim and of the society. Thus, fair trial must be
              accorded to every accused in the spirit of right to life and
              personal liberty and the accused must get a free and fair,
              just and reasonable trial on the charge imputed in a
              criminal case. Any breach or violation of public rights
              and duties adversely affects the community as a whole
              and it becomes harmful to the society in general. In all
              circumstances, the courts have a duty to maintain public
              confidence in the administration of justice and such duty
              is to vindicate and uphold the 'majesty of the law' and the
              courts cannot turn a blind eye to vexatious or oppressive
              conduct that occurs in relation to criminal proceedings.

              Denial of a fair trial is as much injustice to the accused
              as is to the victim and the society. It necessarily requires
              a trial before an impartial judge, a fair prosecutor and an
              atmosphere of judicial calm. Since the object of the trial
              is to mete out justice and to convict the guilty and protect
              the innocent, the trial should be a search for the truth and
                                                             NA528 No. 12505 of 2026
                                 3

              not a bout over technicalities and must be conducted
              under such rules as will protect the innocent and punish
              the guilty. Justice should not only be done but should be
              seem to have been done. Therefore, free and fair trial is a
              sine qua non of Article 21 of the Constitution. Right to get
              a fair trial is not only a basic fundamental right but a
              human right also. Therefore, any hindrance in a fair trial
              could be violative of Article 14 of the Constitution.

              xx xx xx xx

              Article 12 of the Universal Declaration of Human Rights
              provides for the right to a fair trial what is enshrined in
              Article 21 of our Constitution. Therefore, fair trial is the
              heart of criminal jurisprudence and, in a way, an
              important facet of a democratic polity and is governed by
              rule of law. Denial of fair trial is crucifixion of human
              rights."

8. In the case of Natasha Singh Vs. C.B.I. (State), (2013) 5 SCC 741, the
Supreme Court dealt with the scope of discretionary power of Section 311,
Cr.P.C. after referring the judgment of P. Sanjeeva Rao Vs. State of A.P.,
AIR 2012 SC 2242, which is as under:-

              "Grant of fairest opportunity to the accused to prove his
              innocence was the object of every fair trial, observed this
              Court in Hoffman Andreas v. Inspector of Customs,
              Amritsar, (2000) 10 SCC 430. The following passage is in
              this regard apposite:

              `In such circumstances, if the new Counsel thought to
              have the material witnesses further examined, the Court
              could adopt latitude and a liberal view in the interest of
              justice, particularly when the Court has unbridled powers
              in the matter as enshrined in Section 311 of the Code.
              After all the trial is basically for the prisoners and courts
              should afford the opportunity to them in the fairest
              manner possible.'

              xxx xxx xxx xxx

              We are conscious of the fact that recall of the witnesses is
              being directed nearly four years after they were examined
              in chief about an incident that is nearly seven years
              old….. we are of the opinion that on a parity of reasoning
                                                                                                  NA528 No. 12505 of 2026
                                                                      4

                                                  and looking to the consequences of denial of opportunity
                                                  to cross-examine the witnesses, we would prefer to err in
                                                  favour of the appellant getting an opportunity rather than
                                                  protecting the prosecution against a possible prejudice at
                                                  his cost. Fairness of the trial is a virtue that is sacrosanct
                                                  in our judicial system and no price is too heavy to protect
                                                  that virtue. A possible prejudice to prosecution is not
                                                  even a price, leave alone one that would justify denial of
                                                  a fair opportunity to the accused to defend himself."

                                    9. In view of the above facts and circumstances, keeping in mind the settled
                                    position of law in Natasha Singh (supra) and Dr. Rajesh Talwar (supra)
                                     and without going into the merits of the case, the application is allowed.
                                    The order dated 19.2.2025 is set aside. The trial court is directed to issue
                                    summon to PW-1 for further cross-examination and the applicant is directed
                                    to complete cross-examination on first appearance of PW-1 without any
                                    unnecessary adjournment.

                                    September 29, 2026
                                    T. Sinha
                                                                                         (Sanjay Kumar Pachori,J.)




Digitally signed by :-
TRIPTI SINHA
High Court of Judicature at Allahabad


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