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Madhya Pradesh High Court
Kanahiyalal vs The State Of Madhya Pradesh on 30 January, 2026
NEUTRAL CITATION NO. 2026:MPHC-IND: 3043
1 CRR. No. 4664 of 2025
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 30th OF JANUARY, 2026
CRIMINAL REVISION No. 4664 of 2025
K
Versus
THE STATE OF MADHYA PRADESH
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Appearance:
Shri Alok Kothari - Advocate for the petitioner.
Shri Prashant Jain - Govt. Advocate for the respondent/State.
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Reserved on : 20.01.2026
Pronounced on : 30.01.2026
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ORDER
This criminal revision under Section 438 r/w Section 442 of the
Bhartiya Nagrik Suraksha Samhita, 2023 is preferred being aggrieved by
the order dated 11.09.2025 passed in Special Case No.260/2024 arising
out of Crime No.969/2024 registered at P.S: Banganga, District: Indore
Urban by Second Additional Sessions Judge and Presiding Officer of
Special Court designated under Section 28 of the POCSO, Act 2012,
Indore M.P, whereby right of cross-examination of child victim (PW-1),
her grandfather (PW-2) and uncle (PW-3) have been forfeited.
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FACTS OF THE CASE
2. To unravel the exactitude of occurrence, it is expedient to enter
into the facts of the case, which would surely navigate the path to
dispense justice. Suffice it to say that the revision petitioner/accused is
facing a trial under Sections 65(2), 64(2)(f), 64(2)(m), 351(3) of BNS,
2023 and Section 6/5(n), 6/5(m) and Section 6/5(l) of Protection of
Children from Sexual Offences Act, 2012 (hereinafter referred to as
the "POCSO Act, 2012") for committing repeatedly aggravated
penetrative sexual assault with the victim (PW-1) below the age of 12
years during the period of 24.07.2024 to 13.07.2024 within the
territorial jurisdiction of Police Station Banganga, District Indore
Urban. The revision petitioner/ accused is the step father of the child
victim.
3. The trial Court has forfeited the right to cross-examination
recording the finding that all the witnesses are coming from a remote
village Morchakhedi Tehsil Biaora, District Rajgarh situated at a long
distance of more than 200 km from Indore continuously for three
times but they are not being cross-examined deliberately and today
also i.e. on 11.09.2025, they are present at sharp 11:00 AM.
SUBMISSIONS OF PETITIONER'S COUNSEL
4. Challenging the impugned order, this revision petition has been
preferred on the ground that the revision petitioner is in jail and the
earlier counsel representing the revision petitioner/ accused withdrew
himself from the case. Immediately thereafter, the revision petitioner
engaged a new counsel, who filed his vakalatnama and since the case
file and documents were handed over on 11.09.2025, new counsel
prayed for a short adjournment of few days for proper preparation of
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the case. On one occasion, the total cost of Rs.2,400/- was paid by the
brother of the accused as transport expenses of the victim, her
grandfather and uncle. Petitioner is in the jail and all the paper work
and signatures need to be done through the jail authorities and it took
time and on 01.09.2025 the Trial Court gave the next date of after 10
Days i.e., 11.09.2025. Since the case file and documents were handed
over on the 11.09.2025, a short adjournment of few days was sought
for proper preparation of the case and failure to cross-examination
was not deliberate.
5. It is further submitted that the cross-examination is a
fundamental component of fair trial and it is a substantive right of the
accused. Denial of these right amounts to a miscarriage of justice.
Deliberately avoiding the cross-examination is a finding based on
speculative and unsupported by material on record, thereby resulting
in grave prejudice to the revision petitioner. The record could be
accessed only after filing the vakalatnama. Counsel for the revision
petitioner placed reliance on a judgment passed by the Apex Court in
the case of Sachin vs. M.P. reported in 2021 Supreme (MP) 548.
Heard.
6. Counsel for the respondent/State opposed the prayer and prayed
for dismissal of this present criminal revision.
Perused the record.
APPRECIATION AND CONCLUSION
7. Firstly, we have to mention the situation that this matter relates
to repeatedly aggravated penetrative sexual assault of a child below
the age of 12 years by her step father. In the POCSO Act, 2012,
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Chapter VIII deals with "Procedure and powers of Special Courts and
recording of evidence" and there is a timeline for recording of
evidence of child/ victim and speedy disposal of the case also. This
Court is only referring to Section 33 and 35 of Chapter VIII for the
ready reference which is reproduced below:-
"33. Procedure and powers of Special Court.--(1) A Special Court
may take cognizance of any offence, without the accused being
committed to it for trial, upon receiving a complaint of facts which
constitute such offence, or upon a police report of such facts.
(2) The Special Public Prosecutor, or as the case may be, the counsel
appearing for the accused shall, while recording the examination-in-
chief, cross-examination or re-examination of the child, communicate
the questions to be put to the child to the Special Court which shall in
turn put those questions to the child.
(3) The Special Court may, if it considers necessary, permit frequent
breaks for the child during the trial.
(4) The Special Court shall create a child-friendly atmosphere by
allowing a family member, a guardian, a friend or a relative, in whom
the child has trust or confidence, to be present in the court
(5) The Special Court shall ensure that the child is not called
repeatedly to testify in the court.
(6) The Special Court shall not permit aggressive questioning or
character assassination of the child and ensure that dignity of the
child is maintained at all times during the trial.
(7) The Special Court shall ensure that the identity of the child is not
disclosed at any time during the course of investigation or trial:
Provided that for reasons to be recorded in writing, the Special Court
may permit such disclosure, if in its opinion such disclosure is in the
interest of the child.
Explanation.--For the purposes of this sub-section, the identity of the
child shall include the identity of the child's family, school, relatives,
neighbourhood or any other information by which the identity of the
child may be revealed.
(8) In appropriate cases, the Special Court may, in addition to the
punishment, direct payment of such compensation as may be
prescribed to the child for any physical or mental trauma caused to
him or for immediate rehabilitation of such child.
(9) Subject to the provisions of this Act, a Special Court shall, for the
purpose of the trial of any offence under this Act, have all the powers
of a Court of Session and shall try such offence as if it were a Court of
Session, and as far as may be, in accordance with the procedure
specified in the Code of Criminal Procedure, 1973 (2 of 1974) for trial
before a Court of Session.
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35. Period for recording of evidence of child and disposal of
case.--(1) The evidence of the child shall be recorded within a period
of thirty days of the Special Court taking cognizance of the offence
and reasons for delay, if any, shall be recorded by the Special Court.
(2) The Special Court shall complete the trial, as far as possible,
within a period of one year from the date of taking cognizance of the
offence.‖
8. In the light of above provisions, I refer to proceedings of the
trial Court where charges were framed on 17.03.2025 and as per
requirement of Section 33(2) of the POCSO Act, 2012 , the accused
was asked to communicate the questions to be put to the child to the
Special Court which shall in turn put those questions to the child. But
that procedure was not followed and no question was communicated
to the Special Court.
9. The witnesses were present on 19.08.2025 but their evidence
could not be recorded and the case was adjourned for 01.09.205. On
that day i.e. on 01.09.2025, victim (PW-1), her grandfather (PW-2)
and her uncle (PW-3) were present and examination-in-chief of the
victim (PW-1) was recorded but instead of cross-examining, counsel
appearing for the revision petitioner suddenly withdrew himself from
the case and Advocate Shri Rajesh Dangi filed memorandum of
appearance and express inability for cross-examination. Resultantly,
without the cross-examination of victim (PW-1) and examination in
chief of the other witnesses the case was adjourned for 11.09.2025.
10. On 11.09.2025 also, the victim (PW-1), her grandfather (PW-2)
and her two uncles were present at sharp 11:00 AM in the Court. The
examination-in-chief of grandfather as (PW-2) and one uncle (PW-3)
was recorded but they were not cross-examined despite the fact that
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the witnesses were appearing continuously for three times from Tehsil
Biaora, District Rajgarh from a distance of more than 200 kms for the
reasons that the counsel appearing for the revision petitioner again
expressed inability to cross-examine. In this backdrop, the trial Court
forfeited the right to cross-examination.
11. If the right is not exercised despite the opportunities given to
them, then the party at fault cannot raise the plea of non-availability of
fair trial. We have to keep in mind the principle laid down in the case
of Shankar Kishanrao Khade vs. State of Maharashtra reported in
(2013) 5 SCC 546, in which it has held that:
―51. In my view, whenever we deal with an issue of child abuse,
we must apply the best interest child standard, since best
interest of the child is paramount and not the interest of
perpetrator of the crime. Our approach must be child centric.
Complaints received from any quarter, of course, have to be
kept confidential without casting any stigma on the child and
the family members. But, if the tormentor is the family member
himself, he shall not go scot free. Proper and sufficient
safeguards also have to be given to the persons who come
forward to report such incidents to the police or to the Juvenile
Justice Board‖.
12. The special procedures in cases of sexual abuse of children
were legislated to ensure the collection of quality evidence. These
provisions were incorporated into the statute to protect children who
are victims of sexual violence from being re-victimized and to secure
quality evidence. Such provisions cannot be allowed to be frustrated.
If the accused is out on bail, there is a danger that he may tamper with
the evidence or threaten the victim's family members. Conversely, if
he remains in jail, he attempt to frustrate the course of justice by
repeatedly changing counsel and filing pleas alleging violation of the
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right to cross-examination, thereby harassing the victims and other
witnesses until his motive is achieved. We should remember that the
legislature cast the duty not only on the Courts but also on the
counsel. There was no impediment to prepare in the case from
01.09.2025 to 11.09.2025, accordingly, the trial Court committed no
illegality in the impugned order.
13. Now come to the only question to the relief on the ground of
propriety. Since the offence prescribes a harsher punishment so one
opportunity of cross-examination is being considered and to avail that
opportunity the counsel must communicate the questions to be put to
the child to the Special Court in advance. The recording of evidence is
scheduled for 11.02.2026, and the counsel shall communicate the
questions to be put to the child (PW-1) prior to 11.02.2026 to the trial
Court as per Section 33(2) of the POCSO Act, 2012.
14. The trial Court shall give priority to the present case and
counsel for the revision petitioner shall remain present at 11:00 AM
on 11.02.2026 and will complete the cross-examination of those
witnesses in the day.
15. Witnesses have to attend the Court from a remote village of
District Rajgarh covering distance of more than 200 km from Indore.
Initially, the first information report was lodged at P.S. Biaora, District
Rajgarh as Crime No.00/02/2024 on 27.04.2023, accordingly, the P.S.
Biaora, District Rajgarh shall arrange the transport facility to the child
victim (PW-1), her grandfather (PW-2) and uncle (PW-3) so that
victims can appear before the trial Court under protection sharply at
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11:00 AM on 11.02.2026 and will ensure their safe return to their
home.
16. The District Legal Services Authority, Rajgarh shall provide
legal assistance as well as the psychologist/ social work to the victim
as per section 39 and 40 of the POCSO Act, 2012. For ready
reference, section 39 and 40 of the POCSO Act, 2012 are reproduced
below:-
―39. Guidelines for child to take assistance of experts, etc.--
Subject to such rules as may be made in this behalf, the State
Government shall prepare guidelines for use of non-
governmental organisations, professionals and experts or
persons having knowledge of psychology, social work, physical
health, mental health and child development to be associated
with the pre-trial and trial stage to assist the child.
40. Right of child to take assistance of legal practitioner.--
Subject to the proviso to section 301 of the Code of Criminal
Procedure, 1973 (2 of 1974)the family or the guardian of the
child shall be entitled to the assistance of a legal counsel of
their choice for any offence under this Act: Provided that if the
family or the guardian of the child are unable to afford a legal
counsel, the Legal Services Authority shall provide a lawyer to
them.
17. The proceedings of the trial Court placed before this Court
reveal that the trial Court has not exercised the power under Section
33(8) of the POCSO Act, 2012 and Rule 9(1) of the POCSO Rules,
2020 for awarding interim compensation to meet the need of child
victim. The trial Court is requested to consider those aspects.
18. Copy be forwarded to (i) Special Judge, designated under
Section 28 of the POCSO, Act 2012, Indore; (ii) S.P. District Rajgarh;
(iii) In-charge P.S. Biaora, Rajgarh (iv) Chairman, District Legal
Service Authority, Rajgarh-cum-District and Sessions Judge, Rajgarh
and (vi) Secretary, District Legal Services Authority, Rajgarh for
necessary information and ensuring strict compliance of this order.
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19. If there is any non-compliance of this order, the District Legal
Services Authority, Rajgarh shall communicate the same through the
Principal Registrar of this Bench, so that the concerned person may be
held liable in accordance with law.
20. The Secretary, District Legal Services Authority, Rajgarh shall
coordinate between the above authorities/ duty holders. The
particulars of the child victim (PW-1), her grandfather (PW-2) and
uncle (PW-3) be intimated in a sealed envelope to the duty holders,
who shall proceed in the matter maintaining the privacy and without
disclosing the identity of the victims.
21. If the Presiding Judge is not available on 11.02.2026 due to
unavoidable circumstances, he/she shall communicate the same in
advance and inform the concerned about the next date of hearing.
22. In view of above, order dated 11.09.2025 is modified to the
extent that one opportunity of cross-examination of the child victim
(PW-1), her grandfather (PW-2) and uncle (PW-3) as indicated herein
above is being granted and accordingly, the present criminal revision
stands disposed of.
23. It is also pointed out that affidavit in support of revision
petition discloses a serious and impermissible irregularity. The
affidavit dated 19.09.2025, submitted in support of the revision
petition, claims to have been sworn on oath by "K", aged about 37
years, resident of village Morcha Khedi, Biaora, District Rajgarh.
However, the said affidavit bears the signature of the deponent as "D",
which clearly indicates that the affidavit has been sworn by one
person and signed by another. Such a practice is wholly illegal,
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contrary to settled principles of law, and amounts to abuse of the
process of the Court, particularly in proceedings before the High
Court. Such practice is deprecated.
(GAJENDRA SINGH)
JUDGE
Vatan
