# Anil Kumar Sharma v. State of U.P. & Others

- **Citation:** (2013) 1 ILRA 143
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-02-05
- **Bench:** Amar Saran, Dinesh Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-kumar-sharma-v-state-of-u-p-others-42471
- **Pages:** 8

## Headnote

(A) Constitution of India, Article
226-21-Speedy Trail-fundamental Rights
of an accused-for strict compliance of
mandate of Section 170 (1), 173 (2) 41
and 470 (4-b) Cr.P.C. By letter and spiritdirection to install 2 photo machine
either on circle level or Police Station
itself-necessary fund and circular be
issued promptly.

Held: Para-8
We, therefore, want the Director General
of Police to get a comprehensive circular
issued by the next listing for ensuring
that either the accused are arrested or
they are given notice to appear before
the Magistrate concerned on the date
fixed for submitting the report under
section
173(2)
Cr.P.C
as
per
the
requirement
in
different
situations
alluded to above.

(B) Code of Criminal ProcedureSection 309 as amended by Act No. 5 of
2009-effective from 31.12.09-for strict
compliance and fixing liaility of judicial
officer-certian
guidelines
issued
Registrar
General
to
ensure
strict
compliance-inform by action taken on
next date.

Held: Para 29 and 30

We would like the presence of the
Registrar General on the next listing to
inform the Court that a proper circular
has been issued and to produce the same
before this Court, and to give feedback
on our suggestion made above that
papers
required
under
section
207
Cr.P.C. be prepared by the police and
how the impediments on the police
preparing the said papers be overcome.

We would also like to have feedback
from the District Judges regarding the
extent to which compliance is being
made by the trial Courts with the
provisions of section 309 Cr.P.C as also
the directions of the Apex Court and this
Court and the impediments, if any for
ensuring compliance of the aforesaid
legislative mandate

## Text

1 All] Anil Kumar Sharma Vs. State of U.P. & Others
143
fresh facts come to light (When police
informs and seek permission of the court).

10. In view of the aforesaid
consideration, the order dated 01.08.2012
passed
by
the
learned
Magistrate
permitting for reinvestigation on a police
report cannot be sustained. Accordingly,
this petition is allowed and order dated
01.08.2012
passed
by
the
learned
Magistrate for reinvestigation is set aside.
However, the learned Magistrate may
permit for further investigation in the
matter if so requires on fresh facts
informed by the police.
---------

 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.02.2013

BEFORE
THE HON'BLE AMAR SARAN,J.
THE HON'BLE DINESH GUPTA,J.

CRIMINAL MISC. WRIT PETITION No. -
62 of 2013

Anil Kumar Sharma

...Petitioner
Versus
State Of U.P. & Others ...Respondents

Counsel for the Petitioner:
Sri Hitesh Pachori

Counsel for the Respondents:
Govt. Advocate

(A) Constitution of India, Article
226-21-Speedy Trail-fundamental Rights
of an accused-for strict compliance of
mandate of Section 170 (1), 173 (2) 41
and 470 (4-b) Cr.P.C. By letter and spiritdirection to install 2 photo machine
either on circle level or Police Station
itself-necessary fund and circular be
issued promptly.

Held: Para-8
We, therefore, want the Director General
of Police to get a comprehensive circular
issued by the next listing for ensuring
that either the accused are arrested or
they are given notice to appear before
the Magistrate concerned on the date
fixed for submitting the report under
section
173(2)
Cr.P.C
as
per
the
requirement
in
different
situations
alluded to above.

(B) Code of Criminal ProcedureSection 309 as amended by Act No. 5 of
2009-effective from 31.12.09-for strict
compliance and fixing liaility of judicial
officer-certian
guidelines
issued
Registrar
General
to
ensure
strict
compliance-inform by action taken on
next date.

Held: Para 29 and 30

We would like the presence of the
Registrar General on the next listing to
inform the Court that a proper circular
has been issued and to produce the same
before this Court, and to give feedback
on our suggestion made above that
papers
required
under
section
207
Cr.P.C. be prepared by the police and
how the impediments on the police
preparing the said papers be overcome.

We would also like to have feedback
from the District Judges regarding the
extent to which compliance is being
made by the trial Courts with the
provisions of section 309 Cr.P.C as also
the directions of the Apex Court and this
Court and the impediments, if any for
ensuring compliance of the aforesaid
legislative mandate

(Delivered by Hon'ble Amar Saran,J.)

1. Counter affidavit filed today by
the Investigating Officer on behalf of the
State is taken on record. The investigating
officer states that the investigation is still
pending.
144 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

2. The investigating officer shall
again be present on the next date of listing
and inform this Court about the progress
made in completing the investigation.

3. Another issue raised in this
petition is for issuance of directions for
taking steps for expediting the process of
producing or directing the accused to
appear before the Magistrate concerned at
the time of submission of the report under
section 173(2) Cr.P.C.

4. The tardiness of the investigating
and the trial process is not only violative
of the Fundamental Rights of an accused
for a speedy trial under Article 21 of the
Constitution of India, but it is also
prejudicial to the prosecution. If the trial
is allowed to be prolonged for a long
period of time, the witnesses lose interest
or they are won over by the accused and
justice is the casualty in either case.

5. Specifically by the earlier two
orders dated 7.1.2013 and 17.1.2013, we
had directed the State for issuance of the
circular at the level of the police for
ensuring that the accused is present when
the police submit a report under section
173(2) Cr.P.C. for complying with the
mandate of sections 170(1), 173(2), 41
and 470(4)(b) Cr.P.C. in letter and spirit
and also for ensuring that the accused
appear before the trial court at the time
when the report under section 173(2)
Cr.P.C. is submitted against them so that
the trial may commence against them
without hindrance. In case the accused
has been directed to appear before the
Magistrate on the date when the report
under section 173(2) Cr.P.C. is to be
submitted and he fails to appear, then it is
expected that the police and also the
concerned
Magistrate
will
take
all
coercive steps for the arrest of the accused
by initiating proceedings under sections
82 and 83 Cr.P.C. and taking all the
necessary and consequential coercive
steps for arresting the accused. It is
expected that different directions would
be needed if the accused have never been
arrested and no order staying their arrest
is operative, if the accused have already
allowed bail, or if an order staying their
arrest till submission of charge sheet is
operative.

6. As we have been finding that a
very significant part of the delay in trial
takes place after the reports under section
173(2)
Cr.P.C.
are
filed
in
the
Magistrate's Court without producing the
accused or directing the accused to appear
before the court concerned on the date the
charge sheet is submitted. Thereafter the
police disassociate themselves from the
matter and the case goes into the back
burner either because of routine or
systemic delays or because of the wily
connivance of the accused with the
officials, who prevent the report under
section 173(2) Cr.P.C. being placed
before the Magistrate concerned for long
periods of times, which in some cases
extends to one or two years.

7. Issuance of a circular by the DGP
for meeting the aforesaid contingency
was, therefore, directed by the previous
order. The learned Government Advocate
and AGA pointed out that such a circular
is under preparation by the police
authorities and they have sought some
further time for issuance of the same.

8. We, therefore, want the
Director General of Police to get a
comprehensive circular issued by the
next listing for ensuring that either the
1 All] Anil Kumar Sharma Vs. State of U.P. & Others
145
accused are arrested or they are given
notice to appear before the Magistrate
concerned on the date fixed for
submitting the report under section
173(2) Cr.P.C as per the requirement in
different situations alluded to above.

9. The other issue raised in this case
relate to the problem of supplying of
copies of the police report required under
section 207 Cr.P.C. simultaneously with
the production or the appearance of the
accused before the Magistrate concerned
on the date when the report under section
173(2) Cr.P.C. is submitted.

10. We had asked the learned AGA
to enquire from the police and the home
departments as to the impediments in the
police getting the said papers photocopies
or otherwise copied out for supplying to
the accused as the courts are already
overburdened for supplying the copies of
different kinds of papers in a very large
number of cases. It is our impression that
if one or two photocopies machines could
be provided either at the police stations or
the Circle Officers level and that adequate
provisions be made by the home and
finance departments for the same, then the
said papers could easily be handed over to
the accused by the police when he is
produced or appears in response to the
notice to appear on the date when a report
under section 173(2) Cr.P.C. is submitted.
The police at present point out to some
lack
of
resources
with
the
police
department for preparing the copies and
also that the Courts have been furnishing
the copies to the accused so far and not
the police.

11. In this connection, we think
that the Principal Secretary (Home),
Principal Secretary (Law) and the
Principal Secretary (Finance) as well as
Director General of Police or other
senior
officers
in
the
aforesaid
departments, who are authorised to
take decisions in such a matters may be
present before the Court on the next
listing to inform this Court about the
steps that are being taken for achieving
the objectives and how the difficulties
that are being envisaged may be
overcome.

12. We also want that an opinion
be called for from all the District
Judges as to the feasibility and
propriety
of
this
Court
issuing
directions
to
all
the
Magistrate
concerned where reports under section
173(2)
Cr.P.C.
are
submitted
restraining
them
from
taking
cognizance on the said reports or
accepting the said reports unless the
accused are arrested or otherwise
appear before the Magistrate on the
date fixed so that the delay in the
conduct of the trial that are caused on
account of non-appearance of the
accused at this stage may be eliminated
and the legislative mandate of section
170(1), 173(2), 41 and 470 (4)(b)
Cr.P.C. may be complied with in letter
and spirit and for ensuring that the
trial
commences
promptly
after
submission of the report under section
173(2) Cr.P.C.

13. The learned District Judges
may also make other suggestions to this
Court for expediting the trial.

14. We would also like a response
on the next date from the Secretary
(Law) and the Secretary (Home), UP as
well as the Union Law Commission of
India and the Law Commission of U.P.,
146 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
as to the feasibility of amending or
deleting section 209 Cr.P.C. and for
amending
the
Code
of
Criminal
Procedure either in U.P or at the
Central Government level so that police
may submit its report directly to the
Sessions Judge in case the case is a
Sessions
triable
matter
without
compelling the police officer to first
submit a report of the case which
appears triable exclusively by the
Sessions Court, before the Magistrate,
who in turn has to commit the same
under section 209 Cr.P.C. to the Court
of Sessions. It should be kept in mind
the fact that it is open under section
228(a)(a) Cr.P.C. for the Sessions Court
to transfer the case for a trial before
the C.J.M. even after framing of the
charges if he is of the opinion that the
case is not exclusively triable by the
Court of Sessions.

15. This procedure of submitting the
charge sheet of Sessions Triable cases
directly to the Sessions Judge is a time
saving measure and is similar to the
provisions of submitting the charge sheet
directly under the UP Gangsters Act to
the Special Judge (Gangsters Act) in
accordance with section 10(1) of the UP
Gangsters Act.

16. We would also like to get
details from the State Government as
well as from the District Judges of all
the districts regarding the number of
cases in which the reports under section
173(2) Cr.P.C. have been submitted,
but the accused persons have not
appeared
for
periods
upto
three
months, six months, nine months, 12
month and two years or more.

17. Another issue raised by the
previous order was that compliance of the
provisions of section 309 Cr.P.C. have
been observed more in the breach.

18. Section 309 Cr.P.C. is quoted
below in extenso:

"309. Power to postpone or adjourn
proceedings.-

(1) In every inquiry or trial the
proceedings shall be held as expeditiously
as possible, and in particular, when the
examination of witnesses has once begun,
the same shall be continued from day to
day until all the witnesses in attendance
have been examined, unless the court
finds the adjournment of the same beyond
the following day to be necessary for
reasons to be recorded:

[Provided that when the inquiry or
trial relates to an offence under sections
376 to 376 D of the Indian Penal Code
(45 of 1860), the inquiry or trial shall, as
far as possible, be completed within a
period of two months from the date of
commencement of the examination of
witnesses.] (vide amendment by Act No.
5 of 2009, effective from 31.12.2009).

(2)
If
the
court
after
taking
cognizance
of
an
offence,
or
commencement of trial, finds it necessary
or
advisable
to
postpone
the
commencement of, or adjourn, any
inquiry or trial, it may, from time to time,
for reasons to be recorded, postpone or
adjourn the same on such terms as it
thinks fit, for such time as it considers
reasonable, and may by a warrant
remand the accused if in custody:
1 All] Anil Kumar Sharma Vs. State of U.P. & Others
147

Provided that no Magistrate shall
remand an accused person to custody
under this section for a term exceeding
fifteen days at a time:

Provided further that when witnesses
are in attendance no adjournment or
postponement shall be granted, without
examining them, except for, special
reasons to be recorded in writing:

1[Provided also that no adjournment
shall be granted for the purpose only of
enabling the accused person to show
cause against the sentence proposed to be
imposed on him.] (vide Act No. 45 of
1978, effective from 18.12.1978).

2[Provided also that-

(a) no adjournment shall be granted
at the request of a party, except where the
circumstances are beyond the control of
that party;

(b) the fact that the pleader of a
party is engaged in another Court, shall
not be a ground for adjournment;

(c) where a witness is present in
Court but a party or his pleader is not
present or the party or his pleader though
present in Court, is not ready to examine
or cross examine the witness, the Court
may, if thinks fit, record the statement of
the witness and pass such orders as it
think fit dispensing with the examinationin-chief or cross-examination of the
witness, as the case may be.] (vide
amendment by Act No. 5 of 2009,
effective from 1.11.2010).

Explanation-1.If sufficient evidence
has been obtained to raise a suspicion
that the accused may have committed an
offence, and it appears likely that further
evidence may be obtained by a remand,
this is a reasonable cause for a remand.

Explanation 2.The terms on which an
adjournment or postponement may be
granted include, in appropriate cases, the
payment of costs by the prosecution or the
accused."

19. In this connection the Apex
Court in the cases of Akil alias Javed Vs.
State of NCT of Delhi, reported in 2012
(11) SCALE 709, in paras 27 to 36;
State of UP Vs. Shambhu Nath Singh
and Others, reported in 2001 (4) SCC
667; Raj Deo Sharma Vs. State of
Bihar, 1999 Cr.L.J. 4541 and Lt. Col.
S.J.
Chaudhari
Vs.
State
(Delhi)
Administration, (1984)1 SCC 722, has
called for strict action against the
defaulting party as well as the lawyers in
case the trial is not conducted as
expeditiously as possible, including by
cancelling the bail of the accused or by
imposing heavy costs commensurate with
the loss of earning of the witness who
appears for giving evidence in the case,
and especially when the examination of
the witnesses has once begun, the same
has to be carried out on a day to day basis
unless all the witnesses in attendance are
examined and unless the Court finds the
adjournment of the same beyond the
following day to be necessary for reasons
to be recorded for a period it considers
reasonable, and may by a warrant remand
the accused if in custody for a period not
exceeding fifteen days.

20. By the Amendment Act 5 of
2009, effective from 1.11.2010, it has
further been provided that no adjournment
shall be granted at the request of a party,
except where the circumstances are
148 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
beyond the control of that party. The fact
that the pleader of a party is engaged in
another Court, shall not be a ground for
adjournment or where a witness is present
in Court but a party or his pleader is not
present or the party or his pleader though
present in Court, is not ready to examine
or cross examine the witness, the Court
may record the statement of the witness
and pass such orders as it thinks fit
dispensing with the examination-in-chief
or cross-examination of the witness, as
the case may be.

21. When examination of witnesses
has begun and the witnesses are in
attendance, the trial may be adjourned
without examining the witnesses only for
special reasons (i.e. for exceptional and
not ordinary reasons) to be recorded in
writing.

22. It is also provided that
adjournment or postponement can be
made, in a proper case, on payment of
sufficient costs on the party seeking the
adjournment.

23. The Apex Court (in Rajdeo
Sharma v State of Bihar (supra) as
approved in Akil @ Javed, (para 34) has
given a direction to the High Courts to
remind trial Judges of the need to comply
with section 309 of the Code in letter and
spirit. The High Courts have been
directed to take administrative action
against the delinquent judicial officer who
violates the above legislative mandate.

24. More particularly, by virtue of
Amendment Act 5 of 2009, effective from
31.12.2009, so far as the trial under
sections 376 to 376D of the IPC are
concerned, it should be concluded as far
as possible within a period of two months
from the date of commencement of the
examination of the witnesses.

25. In this connection, we had asked
the Registrar General of this Court by the
previous order dated 17.1.2013 to inform
this Court about the circulars relating to
section 309 Cr.P.C., which have been
issued by the Court pursuant to the
directions of the Apex Court and this
Court. The circulars dated 23.11.1992,
6.12.2000 pursuant to the order passed in
Criminal Misc. Application No. 6475 of
2000 have been produced. We regret to
note that the said circulars are very brief
and do not contain the specific points
made in the order of the Apex Court as
well as by this Court and lack teeth. In
this
connection
the
comprehensive
circular No. 1/87 issued by the High
Court of Delhi dated 12.1.1987 has been
cited in extenso in paragraph 27 in Akil @
Javed (supra): The aforesaid paragraph
27 reads as under:

"27. In this context it will also be
worthwhile to refer to a circular issued by
the High Court of Delhi in Circular No.
1/87 dated 12th January 1987. Clause
24A of the said circular reads as under:
"24A disturbing trend of trial of Sessions
cases being adjourned , in some cases to
suit convenience of counsel and in some
others because the prosecution is not fully
ready, has come to the notice of the High
Court. Such adjournments delay disposal
of Sessions cases.

The
High
Court
considers
it
necessary to draw the attention of all the
Sessions Judges and Assistant Sessions
Judges once again to the following
provisions of the Code of Criminal
Proceudre, 1973, Criminal Rules of
Practice, Kerala 1982 and Circulars and
1 All] Anil Kumar Sharma Vs. State of U.P. & Others
149
instructions on the list system issued
earlier, in order to ensure the speedy
disposal of Sessions cases.

1(a). In every enquiry or trial, the
proceedings shall be held as expeditiously
as possible and, in particular, when the
examination of witnesses has once begun,
the same shall be continued from day to
day until all the witnesses in attendance
have been examined, unless the court
finds the adjournment of the same beyond
the following day to be necessary for
reasons to be recorded. ( Section 309 (1)
Crl.P.C.).

(b) After the commencement of the
trial, if the court finds it necessary or
advisable to postpone the commencement
of, or adjourn, any inquiry or trial, it may,
from time to time, for reasons to be
recorded postpone or adjourn the same
on such terms as it thinks fit, for such time
as it considers reasonable. If witnesses
are in attendance no adjournment or
postponement shall be granted, without
examining them, except for special
reasons to be recorded, in writing. (
Section 309(2) Cr.P.C. ).

2. Whenever more than three months
have elapsed between the date of
apprehension of the accused and the close
of the trial in the Court of Sessions, an
explanation of the cause of delay, ( in
whatever court it may have occurred)
shall be furnished, while transmitting the
copy of the judgment. ( Rule 147 Crl.
Rules of Practice ).

3. Sessions cases should be disposed
of within six weeks of their institution, the
date of commitment being taken as the
date of institution in Sessions Cases.
Cases pending for longer periods should
be regarded as old cases in respect of
which explanations should be furnished in
the calendar statements and in the
periodical returns. ( High Court Circular
No. 25/ 61 dated 26th October 1961).

4. Sessions cases should be given
precedence over all other work and no
other work should be taken up on sessions
days until the sessions work for the day is
completed. A Sessions case once posted
should not be postponed unless that is
unavoidable, and once the trial has
begun, it should proceed continuously
from day to day till it is completed. If for
any reason, a case has to be adjourned or
postponed, intimation should be given
forthwith to both sides and immediate
steps be taken to stop the witnesses and
secure their presence on the adjourned
date.

26. On receipt of the order of
commitment the case should be posted for
trial to as early a date as possible,
sufficient time, say three weeks, being
allowed for securing the witnesses.
Ordinarily it should be possible to post
two sessions cases a week, the first on
Monday and the second on Thursday but
sufficient time should be allowed for each
case so that one case does not telescope
into the next. Every endeavour should be
made to avoid telescoping and for this, if
necessary, the court should commence
sitting earlier and continue sitting later
than the normal hours. Judgment in the
case begun on Monday should ordinarily
be pronounced in the course of the week
and that begun on Thursday the following
Monday. (Instructions on the list system
contained in the O.M dated 8th March
1984).
150 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

27. All the Sessions Judges and the
Assistant Sessions Judges are directed to
adhere strictly to the above provisions and
instructions while granting adjournment
in Sessions Cases."

28. We would also like some more
effective circular to be issued highlighting
the directions in this case and the
directions of the Apex Court and the
provisions of section 309 of the Code as
amended from time to time, and the said
circular should not simply contain vague
and diffuse terms to the effect that the
provisions of section 309 of the Code, or
that the decisions of this Court as well as
Apex Court may be complied with.

29. We would like the presence of
the Registrar General on the next
listing to inform the Court that a
proper circular has been issued and to
produce the same before this Court,
and to give feedback on our suggestion
made above that papers required under
section 207 Cr.P.C. be prepared by the
police and how the impediments on the
police preparing the said papers be
overcome.

30. We would also like to have
feedback from the District Judges
regarding the extent to which compliance
is being made by the trial Courts with the
provisions of section 309 Cr.P.C as also
the directions of the Apex Court and this
Court and the impediments, if any for
ensuring compliance of the aforesaid
legislative mandate

31. List this case on 08.03.2013.

32. Interim order shall continue till
the next date of listing.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.02.2013

BEFORE
THE HON'BLE VISNHU CHANDRA
GUPTA,J.

Criminal Revision 123 of 2012

Irfan Amhad, S/O Late Shah Mohammad
and others

 ...Revisionists
Versus
State of U.P.
 ...Opposite Party

Counsel for the Petitioner:
Mohd. Abdul Rafey Siddiqui, Advocate
Mohd. Rehan Ahmad Siddiqui, Advocate

Counsel for the Respondents:
Govt. Advocate,

Criminal Procedure Code-397/401-order
of re-trail by Appellate Court-conviction
without trail-not sustainable-if Appellate
Court found that appellant was not triedno charge sheet framed-judgment of
Trail Court can be modified-but direction
to
re-write
judgment-held-appellate
Court committed manifest error of lawrevision
allowed-order
of
re-writing
judgment quashed.

Held: Para-9

So far trial of Israil is concerned it is
evident from the record of the case that
he was not tried, no charge has been
framed against him because his trial was
separated.
Therefore,
recording
of
conviction against him by the Trial Court
can be rectified by the Appellate Court
and for that the remand of the matter
was not at all necessary.
Case Law discussed:
AIR 1963 (SC) 1531; 1961 (1) Crl.L.J. 398

(Delivered by Hon'ble Visnhu Chandra
Gupta, J.)