# Anil Kumar Srivastava v. C.B.I./S.C.B. Lko. & Ors

- **Citation:** (2025) 2 ILRA 102
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-02-11
- **Case number:** Application U/S 482 No. 1287 of 2025
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-kumar-srivastava-v-c-b-i-s-c-b-lko-ors-54520
- **Pages:** 6

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 161 - Evidence
Act, 1872 - Section 33 - Bharatiya
Sakshya Adhiniyam, 2023- Sections 27 &
33 of the Evidence Act, 1872, relates to
the relevancy of certain evidence for
proving, in a subsequent proceeding or at
a later stage of the same proceeding, the
truth of facts stated therein. Evidence
given by a witness in a judicial proceeding
becomes relevant for such purposes when
the
witness
is
dead
or
unavailable.
However, a statement recorded by an
Investigating Officer under Section 161
CrPC does not fall within the ambit of
Section 33 of the Evidence Act, 1872, nor
does it satisfy the requirements under
Section 27 of the Bharatiya Sakshya
Adhiniyam, 2023. Hence, such statements
cannot be read into evidence for proving
the truth of facts in subsequent judicial
proceedings. (Para 5, 6)

B. Bharatiya Nagarik Suraksha Sanhita,
2023- Section 528 - Code of Criminal
Procedure, 1973, S. 482 - Inherent powers
of the High Court to make such orders as
may be necessary to give effect to any
order under the Sanhita, to prevent abuse
of the process of any Court, or to
otherwise secure the ends of justice.
There are two parts: (i) exercise of
inherent powers ex debito justitiae to
prevent abuse of process and ensure
substantial justice, and (ii) giving effect to
the provisions of the Code when no
specific
remedy
exists.
The
inherent
jurisdiction of the Court is of wide and
plenary amplitude under Section 528 of
BNSS. (Para 11)

C. Lapse on part of counsel - It is a trite
law that a litigant should not suffer for the
lapses or inadvertent mistakes of their
counsel. Once a party engages a lawyer,
confidence is reposed in the lawyer to
safeguard their interest. If due diligence is
shown by the counsel but technical or
procedural lapse occurs inadvertently, the
party ought not to be penalised. In the
present case, the applicant had earlier
filed an application dated 18.07.2024 u/s
33 of the Indian Evidence Act, 1872
seeking to rely on the statement of Late
Vijay Bahadur Singh, the Investigating
Officer (CBCID), recorded under Section
161
CrPC
in
previous
proceedings.
However, Section 33 does not permit such
statements, recorded under Section 161
CrPC, to be treated as relevant in
subsequent
judicial
proceedings.
Application
was
defective.
Applicant
sought liberty to move a fresh application
u/s 33 with an appropriate prayer. Held :
The Court held that parties should not be
prejudiced due to their counsel's lapses. If
inherent powers under Section 528 BNSS
are not exercised, grave injustice would
be
caused,
rendering
the
applicant
remedy-less, which is impermissible under
the constitutional scheme. Accordingly,
liberty was granted to the applicant to
move a fresh application under Section 33
of the Evidence Act, 1872. The trial court
was directed to consider the same in
accordance with law. (Paras 14, 15, 18)

Held: Application Allowed. (E-5)

List of Cases cited:

Ashok Kumar Vs New India Assurance Co. Ltd.,
(2024) 1 SCC 357

## Text

102 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent no. 2 that the present petition is
completely frivolous and an abuse of
process of law and therefore is liable to be
dismissed with cost.

10. Sri Anand Sagar Dubey, learned
AGA-I who appeared on behalf of State
submitted his written submission but the entire
averments and facts along with relied upon
judgments are the same one which he submitted
in Petition under Article 227 no. 13987 of 2024
since petition no. 13987 of 2024 (connected)
and 15602 of 2024 (present) were clubbed with
each other and heard together and as such in
both the petitions the stand of the learned AGA
was the same.

Observations and Conclusion

11. After hearing the rival submissions
extended by learned counsel for the parties, it is
crystal clear that one hand petitioner is
challenging extension of bail in favour of
respondent no. 2 and in the connected petition
petitioner was supporting direction contained in
order which impugned the present petition,
meaning thereby petitioner is seeking bail
cancellation through the instant petition but at
the same time intended to restore direction
passed by learned Additional Sessions JudgeII/Special Judge, SC/ST Act, Gautam Buddha
Nagar which is available in the impugned order
through which the direction was issued to reinvestigate the matter for ascertaining role of
respondent no. 3.

12. As per the procedure, bail
cancellation application can only be preferred
under Section 439(2) Cr.P.C. but in the instant
matter cancellation of bail has been sought
through challenging order through which bail has
been extended in favour of respondent no. 2. It is
a trite law that while seeking bail, it is only the
bail cancellation order which is not amenable for
putting into challenge before higher court. The
grant of bail is not an order which has been
adjudicated on the basis of pleadings exchanged
but it is extension and grant for ensuring personal
liberty ensured as per procedure on the basis of
certain conditions and as such the prayer made
through the instant petition is not maintainable
wherein certain part has been prayed to be
restore and consideration of grant of anticipatory
bail has been sought to be set aside.

13. The procedure has not mandated
for seeking cancellation of bail through
preferring petition under Article 227 of the
Constitution of India and the prayer made in the
instant petition for seeking quashing the order
dated 17.05.2024 only to the extent insofar as it
considers the non-bailable offences against the
respondent no. 2 as bailable and granted
anticipatory bail to the respondent no. 2 cannot
be considered since the same is directly seeking
cancellation of the bail as extended in favour of
respondent no. 2.

14. In view of the aforementioned facts
and circumstances, and in the light of the
discussions made above and by giving highest
regard to the judgments rendered by Hon'ble
Apex Court and the judgment passed by this
Court, relying upon the verdict of Hon'ble Apex
Court, the instant petition stands dismissed
accordingly.
----------
(2025) 2 ILRA 102
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.02.2025

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application U/S 482 No. 1287 of 2025

Anil Kumar Srivastava ...Applicant
Versus
C.B.I./S.C.B. Lko. & Ors.
 ...Opposite Parties
2 All. Anil Kumar Srivastava Vs. C.B.I./S.C.B. Lko. & Ors.
103
Counsel for the Applicant:
Ambrish Kumar Pandey

Counsel for the Opposite Parties:
Anurag Kumar Singh, G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 161 - Evidence
Act, 1872 - Section 33 - Bharatiya
Sakshya Adhiniyam, 2023- Sections 27 &
33 of the Evidence Act, 1872, relates to
the relevancy of certain evidence for
proving, in a subsequent proceeding or at
a later stage of the same proceeding, the
truth of facts stated therein. Evidence
given by a witness in a judicial proceeding
becomes relevant for such purposes when
the
witness
is
dead
or
unavailable.
However, a statement recorded by an
Investigating Officer under Section 161
CrPC does not fall within the ambit of
Section 33 of the Evidence Act, 1872, nor
does it satisfy the requirements under
Section 27 of the Bharatiya Sakshya
Adhiniyam, 2023. Hence, such statements
cannot be read into evidence for proving
the truth of facts in subsequent judicial
proceedings. (Para 5, 6)

B. Bharatiya Nagarik Suraksha Sanhita,
2023- Section 528 - Code of Criminal
Procedure, 1973, S. 482 - Inherent powers
of the High Court to make such orders as
may be necessary to give effect to any
order under the Sanhita, to prevent abuse
of the process of any Court, or to
otherwise secure the ends of justice.
There are two parts: (i) exercise of
inherent powers ex debito justitiae to
prevent abuse of process and ensure
substantial justice, and (ii) giving effect to
the provisions of the Code when no
specific
remedy
exists.
The
inherent
jurisdiction of the Court is of wide and
plenary amplitude under Section 528 of
BNSS. (Para 11)

C. Lapse on part of counsel - It is a trite
law that a litigant should not suffer for the
lapses or inadvertent mistakes of their
counsel. Once a party engages a lawyer,
confidence is reposed in the lawyer to
safeguard their interest. If due diligence is
shown by the counsel but technical or
procedural lapse occurs inadvertently, the
party ought not to be penalised. In the
present case, the applicant had earlier
filed an application dated 18.07.2024 u/s
33 of the Indian Evidence Act, 1872
seeking to rely on the statement of Late
Vijay Bahadur Singh, the Investigating
Officer (CBCID), recorded under Section
161
CrPC
in
previous
proceedings.
However, Section 33 does not permit such
statements, recorded under Section 161
CrPC, to be treated as relevant in
subsequent
judicial
proceedings.
Application
was
defective.
Applicant
sought liberty to move a fresh application
u/s 33 with an appropriate prayer. Held :
The Court held that parties should not be
prejudiced due to their counsel's lapses. If
inherent powers under Section 528 BNSS
are not exercised, grave injustice would
be
caused,
rendering
the
applicant
remedy-less, which is impermissible under
the constitutional scheme. Accordingly,
liberty was granted to the applicant to
move a fresh application under Section 33
of the Evidence Act, 1872. The trial court
was directed to consider the same in
accordance with law. (Paras 14, 15, 18)

Held: Application Allowed. (E-5)

List of Cases cited:

Ashok Kumar Vs New India Assurance Co. Ltd.,
(2024) 1 SCC 357

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard learned counsel for the
applicant, Mr Anurag Kumar Singh,
counsel for C.B.I, Mr. Nirmal Kumar
Pandey and Mr. Sushil Kumar Pandey,
counsels for the State.

2. Under challenge is the order
dated 03.08.2024 passed in Case No.
01A/2009, RC 4 (S)/2007, Under Section
104 INDIAN LAW REPORTS ALLAHABAD SERIES
120B r/w- 420, 467, 468 & 471 I.P.C.,
C.B.I./S.C.B. Lucknow, Pending In The
Special
Judicial
Magistrate
Pollution/C.B.I., Lucknow, C.B.I. Versus -
Anil Kumar Srivastava and Order Dated
05.11.2024 in Criminal Revision bearing
No. 558/2024, Anil Kumar Srivastava
Versus C.B.I.

3. The factual matrix of the case is
that the first information report was lodged
on 06.06.2007 under section 120-B, 420,
467, 468 and 471 of IPC against Rajendra
Kumar @ Tinku and two unknown persons
on the basis of letter no. 4616 dated
30.05.2007, by the then Registrar of High
Court of Judicature at Allahabad, Lucknow
Bench,
whereafter,
the
matter
was
investigated
by
the
C.B.I.
and
the
chargesheet was filed on 26.12.2008 while,
recording the statement of the witnesses
and all concerned. The chargesheet was
filed against Brijesh Kumar Verma and
Anil
Kumar
Srivastava,
the
present
applicant and subsequently, the chargesheet
was challenged by the present applicant
before this Court and an interim order was
granted in his favour while staying the
criminal proceedings against him, whereas,
the trial proceeded against Brijesh Kumar
Verma and he was convicted. Later on, a
482 petition was decided and the matter
was relegated back to the trial court
concerned to proceed with the trial. During
course of trial an application under section
33 of The Evidence Act, 1872 (hereinafter
referred to as 'Act 1872') was moved by the
applicant before the trial court, while
making a prayer that the statement of Vijay
Bahadur Singh (the then CBCID official)
under section 161 of Cr.P.C. is relevant for
proving
in
the
subsequent
judicial
proceedings and therefore, his prayer may
be allowed and his statement may be
considered as an evidence so as a proof.
4. After hearing the applicant and
the C.B.I., the learned trial court decided
the application on 03.08.2024 and it is held
that the statement taken under section 161
of Cr.P.C. by the Investigating Officer do
not come under the purview of section 33
of The Evidence Act.

5. Section 33 of the Evidence Act
is reproduced hereinunder:-

"Relevancy of certain evidence
for proving, in subsequent proceeding, the
truth of facts therein stated. Evidence given
by a witness in a judicial proceeding, or
before any person authorised by law to take
it, is relevant for the purpose of proving, in
a subsequent judicial proceeding, or in a
later stage of the same judicial proceeding,
the truth of the facts which it states, when
the witness is dead or cannot be found, or
is incapable of giving evidence, or is kept
out of the way by the adverse party, or if
his presence cannot be obtained without an
amount of delay or expense which, under
the circumstances of the case, the Court
considers unreasonable:

Provided-

that the proceeding was between
the same parties or their representatives in
interest;

that the adverse party in the first
proceeding had the right and opportunity
to cross-examine;

that the questions in issue were
substantially the same in the first as in the
second proceeding.
 Explanation. A criminal trial or
inquiry shall be deemed to be a proceeding
between the prosecutor and the accused
within the meaning of this section."

6. The aforesaid provisions speaks
about the relevancy of an evidence of a
2 All. Anil Kumar Srivastava Vs. C.B.I./S.C.B. Lko. & Ors.
105
witness in a judicial proceeding, for the
purpose of proving in the subsequent
proceedings.
The
provisions
is
very
obvious that the statement given in a
judicial proceedings is relevant for proving
the certain evidences to the truth of facts.
The statement which is recorded by the
Investigating Officer under section 161 of
Cr.P.C. do not cover the field of the
provisions as there are two elements, first,
evidence given by a witness in the judicial
proceedings and secondly, 'before any
person authorized by law' and admittedly,
the application dated 18.07.2024 submitted
before the trial court, is evident that it was
prayed therein that the statement under
section 161 of Cr.P.C. dated 14.07.2008
given by the then official of CBCID
namely, late Vijay Bahadur Singh be read
while invoking the provisions under section
33 of The Evidence Act. The relevant
extract of the application is reproduced
hereinunder:-

"अतः न्यायालय श्रीमानजी से प्रार्थना
है कि महत्त्वपूर्थ बयान जो साक्षी स्व० श्री
ववजय बहादुर ससिंह पुत्र स्व० श्री हरनाम ससिंह
द्वारा सी.बी.आई. िो मुिदमा उपरोक्त में
ददनािंि 14.07.2008 िो बयान अिंतर्थत धारा 161
दिं.प्र.सिं. िे रूप में िराया र्या र्ा, सी. बी.
आई. द्वारा न्यायालय िे समक्ष पेवित, ररपोर्थ
ददनािंकित 29.05.2022 िे अनुसार उपरोक्त
साक्षी िी मृत्यु ददनािंि 09.06.2018 िो हो
चुिी है जजससे साक्षी स्व०. श्री ववजय बहादुर
ससिंह पुत्र स्व०. श्री हरनाम ससिंह िा बयान
अिंतर्थत
धारा
164
नह िं
हो
सिा,
िो
प्रार्ी/असियुक्त िे सफाई साक्षी- 2 िे रूप में
पढा जाना अत्यन्त महत्वपूर्थ एविं न्याय दहत
में आवश्यि है एविं सफाई साक्षी- 2 िे रूप में
पढा जाय ।"
7. Overtly, the aforesaid prayer is
for considering the statement taken under
section 161 of Cr.P.C. as relevant in the
subsequent trial of co-accused/applicant
and that is not a statement taken under the
judicial proceeding and thus, prima facie,
the finding recorded by the learned trial
court is correct.

8. At this stage, the learned counsel
for the applicant submits that on the ill
advise, the applicant had moved the
application with wrong prayer and if the
applicant is not given the liberty to move
fresh application, the irreparable loss and
legal injury would be caused to him. He
further submitted that in fact the statement
of late Vijay Bahadur Singh was recorded
under the judicial proceeding and in fact
that is required to be considered by the
learned trial court while invoking the
jurisdiction under section 33 of the ' Act
1872' thus, submission is that to meet the
ends of interest of justice, the applicant
may be given liberty to move a fresh
application
in-consonance
with
the
provisions of section 33 of Act 1872 and
the trial court may be directed to consider
the same within stipulated period of time as
may be fixed by this Court.

9. On the other hand Sri Anurag
Kumar Singh, learned counsel appearing
for C.B.I. has opposed the prayer made by
counsel for the applicant for setting aside
the orders dated 03.08.2024 and 05.11.2024
passed on an application under section 33
of Act 1872, moved by the applicant before
the trial court subsequently, a revision
before the revisional court. He submits that
there is no incorrectness in the findings
recorded by the trial court and the
application dated 18.07.2024 has been
rightly rejected, as the statement recorded
under section 161 of Cr.P.C by an
106 INDIAN LAW REPORTS ALLAHABAD SERIES
Investigating Officer cannot be taken into
consideration so far as the mandate of
provisions of section 33 is concerned, thus,
submission is that the instant application is
liable to be dismissed.

10. Having heard learned counsels
for the parties and after perusal of material
placed on record, it transpires that the
impugned
order
is
challenged
while
invoking the jurisdiction under section 528
of B.N.S.S. (old section 482 of Cr.P.C.),
the provisions are quoted hereinunder
verbatim:-

 "Saving of inherent powers of
High Court.
 Nothing in this Sanhita shall be
deemed to limit or affect the inherent
powers of the High Court to make such
orders as may be necessary to give effect to
any order under this Sanhita, or to prevent
abuse of the process of any Court or
otherwise to secure the ends of justice."

11. From perusal of the aforesaid
provision, it reveals that there are two parts,
'one is that the inherent powers to act ex
debito justitiae to do real and substantial
justice where, there is abuse of process of
law and secondly, to secure the ends of
justice. The inherent power is also stretched
to the extent to give effect to the provisions
of the code. Time and again, the law is settled
that the inherent powers under section 482 of
Cr.P.C. (Now 528 of B.N.S.S.) have to be
exercised sparingly, carefully and with great
caution and only in the event when such
exercise is justified by the tests laid down in
the provision itself. Further the inherent
powers of the Court can also be exercised
when there is no remedy provided in the
Code of Criminal Procedure (Now B.N.S.S.)
for redressal of the grievance. It is the fact
that the provisions earlier envisaged under
section 482 of Cr.P.C. is given verbatim
under section 528 of BNSS.

12. So far as the case in hand is
concerned, an anomaly is brought to the
knowledge of this Court that an application
was placed by counsel for the applicant
before the trial court with a prayer that the
statement of late Vijay Bahadur Singh,
Investigating Officer of CBCID, under
section 161 of Cr.P.C. be allowed to be read
for proving the case whereas, section 33 of
the Act 1872 do not permit such statement to
be read.

13. When this Court examines the
impugned order dated 03.08.2024, it reveals
that the learned trial court has considered the
application in a right perspective, while
adhering the provisions of section 33 of the
Act 1872. In this background of the matter,
now the applicant has no remedy except apart
to approach this Court invoking the
jurisdiction under section 528 B.N.S.S. (old
section 482 of Cr.P.C.). Prima facie, the
application dated 18.07.2024 placed by
counsel of the applicant seems to be
erroneous as the very purpose of filing the
aforesaid application was for compliance of
the mandates of section 33 of the Act 1872
and it is a fact that the statement of late Vijay
Bahadur Singh, the Investigating Officer,
CBCID was earlier recorded by the trial court
in the judicial proceedings and that would be
relevant and in fact the application dated
18.07.2024 seems to be drafted inadvertently
with the prayer to get that statement under
section 161 of Cr.P.C. be considered by the
learned trial court in the subsequent judicial
proceedings of the applicant as to prove the
case and therefore, the application is faulty.

14. It is a trite law that the
contesting parties should not be left to
suffer for lapses on the part of their
2 All. Surendra Kumar & Anr. Vs. State of U.P. & Anr.
107
counsels. It is noticeable in the
background of our society, that generally
the party appears through their advocates
and they, after briefing them, pay the fees
and solely trust upon the advocates to do
rest of the things. Such parties are the
villagers and belongs to the rural area and it
is not expected from them that may have
knowledge of the court's procedure. Once
such party/person engaged the lawyer then
he put himself in a confidence that the
lawyer will look after his interest , but there
is other side of the coin that if a lawyer
works with due diligence, but some sorts of
his inadvertence, he commits some fault,
then that cannot be termed the fault
committed by the party and therefore, such
person should not be held liable for the
faults/lapses on the part of their counsels.
This aspect of the matter has currently been
reiterated by the Hon'ble Apex Court in
case of Ashok Kumar v. New India
Assurance Co. Ltd. Reported in 2024 1
SCC 357.

15. This Court is also aware of the
wide and plentitude power given under
sections 528 of B.N.S.S. (Old section 482
of Cr.P.C.) and at the same time, the
limitation thereof. In the instant case, prima
facie, there seems to be some lapse on the
part of the counsel of the applicant, might
be inadvertent, though apparent from the
facts and circumstances of the case and if
this Court would not invoked the inherent
powers, this would cause grave injustice to
the applicant and would be left remedyless, which is impermissible under the
scheme of constitution of India.

16. Consequently, the relief sought
by
the
applicant
vide
the
present
applicaiton seems to be genuine and
therefore, the order dated 03.08.2024
passed by the learned trial court is hereby
kept in abeyance.

17. Further the applicant had also
approached the learned revisional court and
the revisional court has passed the order
dated 05.11.2024 in Criminal Revision
bearing No. 558/2024, while affirming the
order dated 03.08.2024 and therefore, the
same is also kept in abeyance.

18. In view of the above-said, the
applicant is given liberty to move a fresh
application under the strict purview of
section 33 of Act 1872, with the right
texture and prayer, within a period of 30
days and if such, application is moved by
the applicant, the same shall be decided by
the trial court, within further period of
thirty days, after giving opportunity to all
concerned.

19. Accordingly, the application is
hereby allowed.
---------
(2025) 2 ILRA 107
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.02.2025

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Application U/S 482 No. 2818 of 2020
With
Application U/S 482 No. 18261 of 2022
With
Application U/S 482 No. 36143 of 2022
With
Application U/S 482 No. 4446 of 2020

Surendra Kumar & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants: