Allahabad High Court

PREETversusSTATE OF U.P. AND 3 OTHERS

Decided: 23 September 2026
Bench: SANJAY KUMAR PACHORI

Holding

The court held that the trial court erred in dismissing the Section 311 application and, in light of Supreme Court precedents on fair trial, the order must be quashed and the victim summoned for cross‑examination.

Summary

The applicant filed an application under Section 528 BNSS seeking to quash a trial‑court order that dismissed a Section 311 CrPC application for cross‑examination of the victim (PW‑2) in a POCSO case. The trial court had held that the opportunity for cross‑examination had lapsed and relied on Sections 33(5) and 35(1) of the POCSO Act. The High Court examined the principles of a fair trial articulated by the Supreme Court in Dr. Rajesh Talwar, Natasha Singh and Varsha Garg, emphasizing the court’s duty to ensure justice and the accused’s right to confront witnesses. It held that the trial court erred in denying the cross‑examination and that the order was unsustainable in law. Consequently, the order was quashed, the victim was summoned for cross‑examination without further adjournment, and the applicant’s application was allowed.

Issues considered

The trial court’s discretion under Section 311 CrPC to deny cross‑examination of the victim was correctly exercised.
Whether Sections 33(5) and 35(1) of the POCSO Act preclude the accused’s right to cross‑examine the victim.
Whether the denial of cross‑examination violates the constitutional right to a fair trial under Article 21.

Legislation cited

Code of Criminal Procedure, 1973 — s. 311
Indian Penal Code — s. 363, 376
Protection of Children from Sexual Offences Act — s. 3, 33(5), 35(1), 4(2)

Subjects

fair trial
Section 311 CrPC
cross‑examination
POCSO Act
victim's rights
criminal procedure
justice

Judgment

HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 5251 of 2026

Preet
.....Applicant(s)
Versus

State Of U.P. And 3 Others
.....Opposite
Party(s)

Counsel for Applicant(s) : Raghuvansh Chandra, Ram Jee Saxena,
Rohit Kumar
Counsel for Opposite Party(s) : Ankit Tiwari, G.A.

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

1. Supplementary affidavit filed today is taken on record.

2. Sri Raghuvansh Chandra, learned counsel for the applicant, Sri Ankit
Tiwari, learned counsel for the private opposite party no. 2 and Sri
Pushapraj Singh, learned brief holder for the State.

3. The instant application u/s 528 BNSS has been filed to quash the order
dated 13.11.2025 passed in Case No. 2142 of 2022 (State Vs. Preet)
arising out of Case Crime No. 0413 of 2022 under Section 363, 376 of
IPC & Section 3/4 (2) POCSO Act, Police Station- Partapur, District-
Meerut, whereby the application under Section 311 of Cr.P.C. has been
dismissed which has been filed for grant an opportunity to cross-
examination to P.W.2 /Victim pending in the Court of Special Judge
POCSO Act, Meerut.

4. Learned counsel for the applicant submits that the impugned order has
been passed without considering the facts and circumstances of the case
and the settled position of law. It is further submitted that the application
in question has been filed to grant an opportunity to cross-examine
PW.2/Victim, along with the reasons upon which, learned counsel for
applicant was not cross-examined earlier.

5. Learned AGA has not denied the factual of matrix of the case.

6. Learned counsel for the private opposite party no. 2 vehemently
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2

opposed the prayer and submitted that several opportunities has been
granted to applicant to cross- examine to PW-2 by the Trial Court. The
Trial Court dismissed the application in question after observing that the
examination-in-chief of PW-2 was recorded on 05.07.2024 and thereafter,
the matter remained pending for about one year and three months for her
cross-examination. On 20.08.2025, an adjournment application was
moved, which was allowed subject to payment of costs. However, on
09.09.2025, the cross-examination of PW-2 was not conducted, and the
opportunity to cross-examine her was closed. No reason has been
assigned by the applicant for the delay in conducting the cross-
examination. It was further observed that the application in question was
dismissed by the Trial Court having regard to the provisions of Sections
33(5) and 35(1) of the POCSO Act.

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 to ask in a criminal case. Any breach or violation of
public rights and duties adversely affects the community as a
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3

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 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
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4

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 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 Varsha Garg vs The State Of Madhya Pradesh, 2022 SCC
Online SC 986, the Apex Court has observed as under:-

"32 The power of the court is not constrained by the closure of
evidence. Therefore, it is amply clear from the above
discussion that the broad powers under Section 311 are to be
governed by the requirement of justice. The power must be
exercised wherever the court finds that any evidence is
essential for the just decision of the case. The statutory
provision goes to emphasise that the court is not a hapless
NA528 No. 5251 of 2026
5

bystander in the derailment of justice. Quite to the contrary,
the court has a vital role to discharge in ensuring that the
cause of discovering truth as an aid in the realization of justice
is manifest."

10. In view of the facts and circumstances of the case, the law laid down
by the Hon'ble Supreme Court in Natasha Singh (supra), Dr. Rajesh
Talwar (supra) and Varsha Garg (supra), this Court finds that the
impugned order is not sustainable in law and is liable to be quashed.
Accordingly, the impugned order is hereby quashed.

11. The Trial Court is directed to summon PW-2 for cross-examination
and the applicant is directed to complete the cross-examination on the
first date of her appearance, without any adjournment.

12. The present application is, allowed, accordingly.

(Sanjay Kumar Pachori,J.)
September 24, 2026
Neetu

Digitally signed by :-
NEETU SINGH
High Court of Judicature at Allahabad

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