# Ajay Pratap Singh Alias Ajai Sipahi v. State of U.P. & Anr

- **Citation:** (2025) 9 ILRA 549
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-04
- **Case number:** Application U/S 482 No. 6702 of 2025
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-pratap-singh-alias-ajai-sipahi-v-state-of-u-p-anr-53928
- **Pages:** 6

## Headnote

Legality of impugned order rejecting Application
u/s 311 Cr.P.C.
550 INDIAN LAW REPORTS ALLAHABAD SERIES
Headnotes
Code of Criminal Procedure-sec 311Application u/s 311 Cr.P.C. for recall of P.W. 8Investigation Officer has been declined-P.W.8
was extensively cross examined by the defenseAdequate opportunity- no reason to disagree
with the findings of the learned trial courtapplication u/s 311 Cr.P.C. is a dilatory tactic-no
cause for interference. Application dismissed.
(E-9)

Case Law Cited

## Text

9 All. Ajay Pratap Singh alias Ajai Sipahi Vs. State of U.P. & Anr.
549
statutory bail under Section 187(3) of
BNSS is an intermediary order and the
same is revisable, subject to any other
provision provided in a special Act.

14. Coming to the crux of the issue of
maintainability, it is apparent from the
provision of Section 21(4) of the Act 2008
that an appeal shall lie to the High Court
against an order of the Special Court
granting or refusing bail, notwithstanding
contained in Sub Section (3) of Section 378
of the Cr.P.C. This provision is overt in its
mandate and while applying this provision
in the present case, it is apparent that this
does not speak regarding any difference
of any kind of refusing or granting bail,
meaning thereby that if the Special Court
(NIA) grants or refuses the bail, the same
is amenable to the provisions of the
appeal, prescribed under Section 21 of
the Act 2008 and, therefore, in presence
of the obvious provisions, no otherwise
definition can be given against the intent
of the legislature. This Court is also
aware of the trite law that a thing should
be done in the manner prescribed under
the statute, not otherwise. Admittedly,
vide order dated 7.7.2025, the learned
Special Judge (NIA) has rejected the
default bail application of the applicant.
Thus, against such order the remedy of
appeal is provided under the Special Act,
i.e., Act 2008.

15. Further this Court also noticed that
the law referred by counsel for the
applicant, which is rendered in case of
Harendra Vs. State of U.P. and another
(supra), is on different factual matrix and
this will not apply to the facts and
circumstances of the present case as the
dispute in question in the above-said case
was regarding completion of ninety days as
the charge sheet was dispatched on the
same day when the application for default
bail was moved, therefore, this will not
cover the field of the issue in the instant
matter.

16. Ergo, this Court is of the
considered
opinion
that
the
instant
application challenging the order dated
7.7.2025 passed by the Special Court (NIA)
is not maintainable, thus, preliminary
objection taken by counsel for the State;
sustains.

17. The present application is hereby
dismissed as not maintainable.

18. However, it is open to the
applicant to pursue the appropriate remedy,
provided under law.

19. Consigned to the records.
---------
(2025) 9 ILRA 549
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 04.09.2025

BEFORE

THE HON'BLE AJAY BHANOT, J.

Application U/S 482 No. 6702 of 2025

Ajay Pratap Singh Alias Ajai Sipahi
 ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Abhishek Singh, Dharmendra Pratap Singh,
Shradha

Counsel for the Opposite Parties:
G.A., Sayyed Farooq Ahmad

Issue for consideration
Legality of impugned order rejecting Application
u/s 311 Cr.P.C.
550 INDIAN LAW REPORTS ALLAHABAD SERIES
Headnotes
Code of Criminal Procedure-sec 311Application u/s 311 Cr.P.C. for recall of P.W. 8Investigation Officer has been declined-P.W.8
was extensively cross examined by the defenseAdequate opportunity- no reason to disagree
with the findings of the learned trial courtapplication u/s 311 Cr.P.C. is a dilatory tactic-no
cause for interference. Application dismissed.
(E-9)

Case Law Cited
1. State (NCT of Delhi) vs. Shiv Kumar Yadav
reported at (2016) 2 SCC 402
2. Ratanlal Vs. Prahlad Jat reported at (2017) 9
SCC 340
3. Swapan Kumar Chatterjee vs CBI, reported at
(2019) 14 SCC 328
4. V. N. Patil vs. K. Niranjan Kumar, reported at
(2021) 3 SCC 661
5. Manju Devi Vs.State of Rajasthan and others
reported at 2019 (6) SCC 203

List of Acts
1.Code of Criminal Procedure

List of Keywords
Section 311; Dilatory tactics

Appearances of parties
Counsel for Applicant(s) : Abhishek Singh,
Dharmendra Pratap Singh, Shradha
Counsel for Opposite Party(s) : G.A., Sayyed
Farooq Ahmad

(Delivered by Hon'ble Ajay Bhanot, J.)

1. Heard Shri Abhishek Singh, learned
counsel assisted by Shri Anuj Kumar
Gupta, learned counsel for the applicant,
Shri Syed Farookh Ahmad, learned counsel
for the first informant-opposite party no. 2
and Shri Vivek Gupta, learned AGA for the
State.

2. By the impugned order dated
11.06.2024 the application filed by the
applicant under Section 311 Cr.P.C. for
recall of P.W. 8 Tara Singh Patel who was
the investigation officer has been declined.

3. The learned trial court while
rejecting the application has first noticed
the timeline of the case. As per the
impugned order examination in chief of
P.W. 8 Tara Singh Patel was conducted on
28.10.2022. The defence did not cross
examine the P.W. 8 on the date of
examination in chief. Thereafter P.W. 8
was
extensively
cross
examined
on
10.02.2023 by the defence. Adequate
opportunity to cross examine P.W. 8 was
thus provided to the applicant. The defence
has also asked all relevant questions in the
facts and circumstances of the case to the
investigating officer while the latter was
under cross examined. After examination
of P.W. 8 and all prosecution witnesses the
trial
proceeded
in
due
course.
The
conclusion of prosecution evidence set the
stage for proceedings under Section 313
Cr.P.C. The proceedings under Section 313
Cr.P.C. too were concluded over a period
of time.

4. It is fairly informed by learned
counsel for the applicant that three defence
witnesses have also been introduced at the
stage of defence evidence. After conclusion
of the evidence of both sides the matter was
posted for hearing. The applicant then
moved an application on 06.12.2023 under
Section 311 Cr.P.C. to recall P.W. 8 for
further cross examination. The trial also
adverted to the merits of the case set out in
application. On the back of the aforesaid
reasoning and factual determination the
learned
trial
court
has
rejected
the
application under Section 311 Cr.P.C.

5. The jurisdiction of the trial court
under Section 311 Cr.P.C. is wide enough
to meet the ends of justice. However, good
authority has provided for caution and
circumspection while exercising judicial
discretion under the said provision.
9 All. Ajay Pratap Singh alias Ajai Sipahi Vs. State of U.P. & Anr.
551

6. The Supreme Court in State (NCT
of Delhi) vs. Shiv Kumar Yadav reported
at (2016) 2 SCC 402, it has been held: -

"Certainly,
recall
could
be
permitted if essential for the just decision,
but not on such consideration as has been
adopted
in
the
present
case.
Mere
observation that recall was necessary "for
ensuring fair trial" is not enough unless
there are tangible reasons to show how the
fair trial suffered without recall. Recall is
not a matter of course and the discretion
given to the court has to be exercised
judiciously to prevent failure of justice and
not arbitrarily. While the party is even
permitted to correct its bona fide error and
may be entitled to further opportunity even
when such opportunity may be sought
without any fault on the part of the opposite
party, plea for recall for advancing justice
has to be bona fide and has to be balanced
carefully
with
the
other
relevant
considerations including un-called for
hardship to the witnesses and un-called for
delay in the trial. Having regard to these
considerations, there is no ground to justify
the recall of witnesses already examined."

7. The Supreme Court in Ratanlal Vs.
Prahlad Jat reported at (2017) 9 SCC
340, held as under:

"17. In order to enable the court
to find out the truth and render a just
decision, the salutary provisions of Section
311 are enacted whereunder any court by
exercising its discretionary authority at any
stage of inquiry, trial or other proceeding
can summon any person as witness or
examine any person in attendance though
not summoned as a witness or recall or reexamine any person already examined who
are expected to be able to throw light upon
the matter in dispute. The object of the
provision as a whole is to do justice not
only from the point of view of the accused
and the prosecution but also from the point
of view of an orderly society. This power is
to be exercised only for strong and valid
reasons and it should be exercised with
caution and circumspection. Recall is not a
matter of course and the discretion given to
the court has to be exercised judicially to
prevent failure of justice. Therefore, the
reasons for exercising this power should be
spelt out in the order."

8. The Supreme Court in Swapan Kumar
Chatterjee vs CBI, reported at (2019) 14
SCC 328, held thus:

"10. The first part of this section
which
is
permissive
gives
purely
discretionary authority to the criminal
court and enables it at any stage of inquiry,
trial or other proceedings under the Code
to act in one of the three ways, namely, (i)
to summon any person as a witness; or (ii)
to examine any person in attendance,
though not summoned as a witness; or (iii)
to recall and re-examine any person
already examined. The second part, which
is mandatory, imposes an obligation on the
court (i) to summon and examine, or (ii) to
recall and re-examine any such person if
his evidence appears to be essential to the
just decision of the case.

11. It is well settled that the
power conferred under Section 311 should
be invoked by the court only to meet the
ends of justice. The power is to be
exercised only for strong and valid reasons
and it should be exercised with great
caution and circumspection. The court has
vide power under this section to even recall
witnesses for re-examination or further
examination, necessary in the interest of
justice, but the same has to be exercised
after taking into consideration the facts and
552 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstances of each case. The power
under this provision shall not be exercised
if the court is of the view that the
application has been filed as an abuse of
the process of law."

9. In V. N. Patil vs. K. Niranjan
Kumar, reported at (2021) 3 SCC 661, the
Supreme Court held: -

"14.
The
object
underlying
Section 311 CrPC is that there may not be
failure of justice on account of mistake of
either party in bringing the valuable
evidence on record or leaving ambiguity in
the statements of the witnesses examined
from either side. The determinative factor
is whether it is essential to the just decision
of the case. The significant expression that
occurs is "at any stage of any inquiry or
trial or other proceeding under this Code".
It is, however, to be borne in mind that the
discretionary
power
conferred
under
Section 311 CrPC has to be exercised
judiciously, as it is always said "wider the
power, greater is the necessity of caution
while exercise of judicious discretion".

17. The aim of every court is to
discover the truth. Section 311 CrPC is one
of many such provisions which strengthen
the arms of a court in its effort to unearth
the truth by procedure sanctioned by law.
At the same time, the discretionary power
vested under Section 311 CrPC has to be
exercised judiciously for strong and valid
reasons
and
with
caution
and
circumspection to meet the ends of justice."

10. Learned counsel for the applicant
has relied upon the judgement rendered by
the Supreme Court in Manju Devi Vs.State
of Rajasthan and others reported at 2019
(6) SCC 203. The facts of the case in which
discretion was exercised in favour of the
accused while allowing the application under
Section 311 Cr.P.C., the Supreme Court in
Manju Devi (supra) noticed the following
facts:

"11. The indisputable fact situation
of the case remains that the daughter of the
appellant died an unnatural death on
14.01.2010 in Nigeria, where she was living
with her husband (the respondent No. 2), who
is standing the trial for offences under
Section 302, 304B and 498A IPC. The first
post-mortem of the dead-body of the daughter
of appellant was carried out on 16.01.2010 in
Aminu Kanu Teaching Hospital, Nigeria by
the said Dr. I. Yusuf. A copy of the postmortem report prepared by the said doctor in
Nigeria has, of course, been placed on record
wherein, the cause of death is stated as
"asphyxia secondary to strangulation".
Though the dead-body of the daughter of
appellant was brought to India on 29.01.2010
and Medical Board was constituted for
conducting the post-mortem but then, the Board
found that no definite opinion could be given
regarding the time and cause of death. The
investigating agency, for the reasons best
known to it, did not cite the said doctor, who
conducted the first post-mortem in Nigeria as a
witness. It is also not the case on behalf of the
accused that the copy of the post-mortem report
dated 16.01.2010 prepared in Nigeria was not
disputed and/or he would not be seeking to
cross-examine the said doctor, if he is examined
as a witness in this matter. In the given set of
facts and circumstances, evident it is that the
testimony of the said doctor who conducted the
first post-mortem in Nigeria is germane to the
questions involved in this matter; and for a just
decision of the case with adequate opportunity
to both the parties to put forward their case, the
application under Section 311CrPC ought to
have been allowed.

11. In those facts and circumstances
the Supreme Court in Manju Devi (supra)
9 All. Ajay Pratap Singh alias Ajai Sipahi Vs. State of U.P. & Anr.
553
held that the age of a case should not be the
determinative factor in such matters and in
any case length of the trial per se should
not come in the way of examination of
material witness by holding:

"12. Though it is expected that
the trial of a sessions case should proceed
with reasonable expedition and pendency
of such a matter for about 8-9 years is not
desirable but then, the length/duration of a
case cannot displace the basic requirement
of ensuring the just decision after taking all
the necessary and material evidence on
record. In other words, the age of a case,
by itself, cannot be decisive of the matter
when a prayer is made for examination of a
material witness."

12. As noticed above in Manju Devi
(supra) the material witness namely Doctor
who had conducted the postmortem report
was waived as a prosecution witness and
not produced before the court. The
testimony of the said witness was likely to
have a significant impact on the trial. The
facts of this case are distinguishable and
Manju Devi (supra) does not support the
case of the applicant.

13. On the contrary as noticed by the
learned trial court in this case the defence
had ample opportunity to cross examine
P.W. 8. The defence has also fully availed
the said opportunity and conducted a
comprehensive cross examination. The
applicant
had
been
afforded
all
opportunities and the trial was processed in
a fair manner.

14. In this wake failure to file an
application in a reasonable period of time
would be a relevant factor in deciding the fate
of the application under Section 311 Cr.P.C.
Consequently the said delay in tendering the
application under Section 311 Cr.P.C. would
have a material bearing on its fate.

15. The need for recall of P.W. 8 for
further cross examination will now be
assessed on merits. The application under
Section 311 Cr.P.C. seeks to cross examine
the investigating officer on various aspects of
forensic science laboratory report which was
always in the record and in the knowledge of
the applicant and his counsel. The question as
regards the inspection of the spot of the
incident by the investigating officer which is
depicted in the application under Section 311
Cr.P.C. is an exercise in futility since the
question related to the aforesaid inspection
was pointedly asked to PW 8. This question
only fortifies the findings of the learned trial
court that the application under Section 311
CrP.C. is a dilatory tactic of the applicant to
delay the process of law.

16. This Court has no reason to
disagree with the findings of the learned
trial court that all relevant questions in the
facts and circumstances of the case have
already been posed to P.W. 8 when the said
witness was under cross examination.

16.
In
wake
of
the
preceding
discussion there is no cause for interference
in the order impugned passed by the
learned trial court.

17. The Application U/S 482 is
accordingly dismissed.

18. Interim order stands vacated.

19. A copy of this order to be
communicated to the learned trial court.

20. The learned trial court shall
forthwith proceed in accordance with law
after giving an opportunity to the applicant
554 INDIAN LAW REPORTS ALLAHABAD SERIES
to make his final arguments (through his
counsel). In case the applicant or his
counsel impedes the trial or adopts dilatory
tactics the learned trial court shall record a
finding to this effect and proceed in
accordance with law.
---------
(2025) 9 ILRA 554
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.09.2025

BEFORE

THE HON'BLE SAMEER JAIN, J.

Application U/S 528 BNSS No. 10806 of 2025

Ajay Rai ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Praveen Kumar Singh, Syed Imran Ibrahim

Counsel for the Opposite Parties:
G.A.

Issue for consideration
Effect of wrong cognizance by the Court upon
the
chargesheet;
legality
of
impugned
cognizance
and
summoning
order
and
chargesheet.

Headnotes
Indian Penal Code-sec 188; Code of
Criminal proceeding- court concerned took
the cognizance and issued summons on the
police report u/s 173(2) Cr.P.C.- Court can
not take cognizance for an offence u/s 188
IPC on the police report u/s 173(2) Cr.P.C.-
except on the complaint in writing made by
the public servant- therefore impugned
cognizance
and
summoning
order
and
proceedings are bad -cognizable offence and
therefore it cannot be held that investigation
of the case was bad-on the basis of evidence
collected by the Investigating Officer-no
offence punishable u/s 188 IPC is made out
against the applicant -charge sheet can very
well
be
quashed
on
this
ground.
Application allowed.
Held, considering the facts of the present case
it is apparent that on the basis of evidence
collected by the Investigating Officer, no offence
punishable under section 188 IPC is made out
against the applicant and though charge sheet
of the present case cannot be quashed on the
ground that cognizance was barred by virtue of
section
195(1)(a)(i) Cr.P.C. but on this ground charge
sheet can very well be quashed. Law is settled,
if evidence collected during investigation does
not disclose alleged offence then charge sheet
can be quashed (See: State of Haryana and
others Vs. Bhajan Lal and others 1992 Supp (1)
SCC 335). (para 30) (E-9)

Case Law Cited
1. State of Maharashtra and another Vs. Sayyed
Hassan Sayyed Subhan and others (2019) 18
SCC 145
2. State of Haryana and others Vs. Bhajan Lal
and others 1992 Supp (1) SCC 335

List of Acts
1.Indian Penal Code
2. Code of Criminal Proceeding

List of Keywords
Sec. 173(2) Cr.P.C.; section 195(1)(a)(i) Cr.P.C.;
cognizance for an offence punishable under
section 178 to 188 of the IPC; cognizance on a
police report submitted under section 173(2)
Cr.P.C.

Appearances of parties
Counsel for Applicant(s) : Praveen Kumar Singh,
Syed Imran Ibrahim
Counsel for Opposite Party(s) : G.A.

(Delivered by Hon'ble Sameer Jain, J.)

1. Heard Sri Praveen Kumar Singh,
learned counsel for the applicant and Sri
Manish Goyal, learned AAG assisted by Sri
Rupak Chaubey, learned AGA for the
State-respondent.

2. The instant application u/s 528
BNSS has been filed by the applicant with