# Anil Kumar v. State of U.P. & Ors

- **Citation:** (2024) 9 ILRA 17
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-19
- **Case number:** Criminal Misc. IInd Bail Application No. 1174 of 2024
- **Bench:** Krishan Pahal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-kumar-v-state-of-u-p-ors-52576
- **Pages:** 5

## Headnote

A. Criminal Law - Criminal Procedure
Code,1973-Section
439-Indian
Penal
Code,1860-Sections 376,506 & 452 -
Sections 3/4 of the POCSO Act-PW-1 and
PW-2 did not support the prosecution in
court,
reducing
the
likelihood
of
conviction-the prosecution pointed out
that the victim initially testified against
the applicant, but during a delayed crossexamination(conducted after two months
nine
days),
she
resiled
from
her
statement-Held, the evidence of hostile
witnesses
should
not
be
entirely
disregarded
if
found
credible
upon
scrutiny-cited concern over delays in
cross-examinations,
which
could
undermine fair trial principles by enabling
undue influence on witnesses-The court
directed the trial court to expedite the
case proceedings.(Para 1 to 12)

The application is rejected. (E-6)

List of Cases cited:

## Text

9 All. Anil Kumar Vs. State of U.P. & Ors.
17
sent a letter to S.S.P., Moradabad for
providing
adequate
security
to
the
informant so that he can fearlessly attend
the Court to record his statement.

41. The learned trial Court while
passing the impugned order did not
consider the material aspect of the matter
and ignored certain documents as well the
criminal history of the opposite party. The
learned trial Court passed the impugned
bail order taking into consideration the
incorrect facts of the case, therefore, the
bail cancellation application deserves to be
allowed.

42. Having considered the facts and
circumstances of the case, the material
available on record and the observations
made above, the Court is of the opinion that
the impugned bail order dated 21.09.2022
passed by learned Special Judge, SC/ST
Act, Moradabad in the aforesaid case crime
cannot be sustained. Accordingly, the bail
cancellation application is allowed and the
impugned bail order dated 21.09.2022 is
hereby set aside. The bail granted to
opposite party no.2-Zakir Ali @ Hazi Zakir
in aforesaid case crime stands cancelled.

43. The opposite party Zakir Ali @
Hazi Zakir is hereby directed to surrender
within 10 days before the Court concerned.

44. Any observation made above shall
not be treated as any finding on the merit
and shall not prejudice the trial.

45. Registrar (Compliance) is also
directed to communicate this order to the
Chief Judicial Magistrate, Moradabad for
necessary compliance forthwith.
----------
(2024) 9 ILRA 17
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.09.2024

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Criminal Misc. IInd Bail Application No. 1174 of
2024

Anil Kumar ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Ravikant Shukla, Sri Santosh Kumar
Pandey, Sri Yadavendra Dwivedi

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Criminal Procedure
Code,1973-Section
439-Indian
Penal
Code,1860-Sections 376,506 & 452 -
Sections 3/4 of the POCSO Act-PW-1 and
PW-2 did not support the prosecution in
court,
reducing
the
likelihood
of
conviction-the prosecution pointed out
that the victim initially testified against
the applicant, but during a delayed crossexamination(conducted after two months
nine
days),
she
resiled
from
her
statement-Held, the evidence of hostile
witnesses
should
not
be
entirely
disregarded
if
found
credible
upon
scrutiny-cited concern over delays in
cross-examinations,
which
could
undermine fair trial principles by enabling
undue influence on witnesses-The court
directed the trial court to expedite the
case proceedings.(Para 1 to 12)

The application is rejected. (E-6)

List of Cases cited:
1.
C.
Muniappan
&
ors.
.Vs
St.
of
T.N.(2010)INSC 553
2. Vinod Kumar Vs St. of Punj.(2014) INSC 670
18 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Rajesh Yadav & anr. Vs. St. of U.P.(2022)
INSC 148
4. Hussian & anr. Vs U.O.I. (2017) 5 SCC 702
(Delivered by Hon'ble Krishan Pahal, J.)

1. Heard Sri Yadavendra Dwivedi,
learned counsel for the applicant and Sri Jai
Kishan Chaurasia, learned State Law
Officer and also perused the record.

2. This is the second bail application
moved on behalf of the applicant seeking
bail in Case Crime No. 238 of 2020, under
Sections 376, 506, 452 of I.P.C. and
Sections 3/4 of POCSO Act, Police Station
- Shivli, District - Kanpur Dehat, during the
pendency of trial.

3. The first bail application of the
applicant was rejected by the coordinate
Bench of this Court vide order dated
01.09.2021 passed in Criminal Misc. Bail
Application No. 41070 of 2020.

ARGUMENTS ON BEHALF OF
APPLICANT :

4. As a new ground, learned counsel
for the applicant has stated that PW-1
Informant and PW-2 Victim have been
examined in Court and they have not
supported the prosecution story, as such,
there is no likelihood of conviction of the
applicant in the instant case.

5. The applicant is incarcerated in jail
since 13.05.2020, as such, more than 4
years have been passed. His fundamental
rights enshrined in Article 21 of the
Constitution of India stand violated, as
such, he is entitled for bail. In case, the
applicant is released on bail, he will not
misuse the liberty of bail and shall
cooperate with trial.

ARGUMENTS ON BEHALF OF
STATE LAW OFFICER :

6. Per contra, learned State Law
Officer has vehemently opposed the bail
application by stating that the statement of
the victim recorded by the trial court is
intact as her examination-in-chief and cross
examination were taken up on 18.04.2024
and she has categorically nominated the
applicant to have barged into her house and
committed rape with her. The said
statement stands unimpeached during her
cross-examination taken up the same day
but
the
cross-examination
has
been
deferred at the request of counsel for the
applicant and further cross-examination
was taken up about 2 months and 9 days
thereafter i.e. on 27.06.2024 and the victim
had not supported the prosecution story in
it. The said act of the applicant for not
completing the cross-examination the same
day and deferring the matter for more than
two months is an act to somehow win over
the witness, as such, the applicant is not
entitled for bail.

CONCLUSION :

7. Supreme Court, in the case of C.
Muniappan and Others v. State of Tamil
Nadu1, has observed thus:

"81. It is settled legal proposition
that : (Khujji case, SCC p. 635, para 6)

'6.
...
the
evidence
of
a
prosecution witness cannot be rejected in
toto merely because the prosecution chose
to treat him as hostile and cross-examined
him. The evidence of such witnesses cannot
be treated as effaced or washed off the
record altogether but the same can be
accepted to the extent their version is found
to be dependable on a careful scrutiny
thereof.'
9 All. Anil Kumar Vs. State of U.P. & Ors.
19

82. In State of U.P. v. Ramesh
Prasad Misra, (1996) 10 SCC 360] this
Court held that (at SCC p. 363, para 7)
evidence of a hostile witness would not be
totally rejected if spoken in favour of the
prosecution or the accused but required to
be subjected to close scrutiny and that
portion of the evidence which is consistent
with the case of the prosecution or defence
can be relied upon. A similar view has been
reiterated by this Court in Balu Sonba
Shinde v. State of Maharashtra, (2002) 7
SCC

543], Gagan Kanojia v. State of
Punjab, (2006) 13 SCC 516], Radha
Mohan Singh v. State of U.P.,(2006) 2 SCC
450], Sarvesh Narain Shukla v. Daroga
Singh, (2007) 13 SCC 360] and Subbu
Singh v. State, (2009) 6 SCC 462.

8. In the case of Vinod Kumar v.
State of Punjab2, the Supreme Court has
observed thus:

"51. It is necessary, though
painful, to note that PW 7 was examinedin-chief on 30-9-1999 and was crossexamined on 25-5-2001, almost after 1 year
and 8 months. The delay in said crossexamination, as we have stated earlier had
given enough time for prevarication due to
many a reason. A fair trial is to be fair both
to the defence and the prosecution as well
as to the victim. An offence registered
under the

Prevention of Corruption Act is
to be tried with all seriousness. We fail to
appreciate how the learned trial Judge
could exhibit such laxity in granting so
much time for cross-examination in a case
of this nature. It would have been
absolutely appropriate on the part of the
learned trial Judge to finish the crossexamination on the day the said witness
was examined. As is evident, for no reason
whatsoever it was deferred and the crossexamination took place after 20 months.
The witness had all the time in the world to
be gained over. We have already opined
that he was declared hostile and reexamined.

52. It is settled in law that the
testimony of a hostile witness can be relied
upon by the prosecution as well as the
defence. In re-examination by the Public
Prosecutor, PW 7 has accepted about the
correctness of his statement in the court on
13-9-1999. He has also accepted that he
had not made any complaint to the
Presiding Officer of the court in writing or
verbally that the Inspector was threatening
him to make a false statement in the court.
It has also been accepted by him that he
had given the statement in the court on
account of fear of false implication by the
Inspector. He has agreed to have signed his
statement dated 13-9-1999 after going
through and admitting it to be correct. It
has come in the re-examination that PW 7
had not stated in his statement dated 13-91999 in the court that recovery of tainted
money was not effected in his presence
from the accused or that he had been told
by the Inspector that amount has been
recovered from the accused. He had also
not stated in his said statement that the
accused and witnesses were taken to the
Tehsil and it was there that he had signed
all the memos.

53. Reading the evidence in
entirety, PW 7's evidence cannot be
brushed aside. The delay in crossexamination
has
resulted
in
his
prevarication from the examination-inchief.
But,
a
significant
one,
his
examination-in-chief and the re-
examination impels us to accept the
testimony that he had gone into the octroi
post and had witnessed about the demand
and acceptance of money by the accused.
20 INDIAN LAW REPORTS ALLAHABAD SERIES
In his cross-examination he has stated that
he had not gone with Baj Singh to the
Vigilance Department at any time and no
recovery was made in his presence. The
said part of the testimony, in our
considered
view,
does
not
commend
acceptance in the backdrop of entire
evidence in examination- in-chief and the
re-examination.
xxx xxx xxx

57. Before parting with the case
we are constrained to reiterate what we
have said in the beginning. We have
expressed our agony and anguish for the
manner in which trials in respect of serious
offences relating to corruption are being
conducted by the trial courts:

57.1. Adjournments are sought on
the drop of a hat by the counsel, even
though the witness is present in court,
contrary to all principles of holding a trial.
That apart, after the examination-in-chief
of a witness is over, adjournment is sought
for cross-examination and the disquieting
feature is that the trial courts grant time.
The law requires special reasons to be
recorded for grant of time but the same is
not taken note of.

57.2. As has been noticed earlier,
in the instant case the cross-examination
has taken place after a year and 8 months
allowing ample time to pressurise the
witness and to gain over him by adopting
all kinds of tactics.

57.3. There is no cavil over the
proposition that there has to be a fair and
proper trial but the duty of the court while
conducting the trial is to be guided by the
mandate of the law, the conceptual fairness
and above all bearing in mind its
sacrosanct duty to arrive at the truth on the
basis of the material brought on record. If
an accused for his benefit takes the trial on
the path of total mockery, it cannot be
countenanced. The court has a sacred duty
to see that the trial is conducted as per law.
If adjournments are granted in this manner
it would tantamount to violation of the rule
of law and eventually turn such trials to a
farce. It is legally impermissible and
jurisprudentially abominable. The trial
courts are expected in law to follow the
command of the procedure relating to trial
and not yield to the request of the counsel
to grant adjournment for non-acceptable
reasons.

57.4. In fact, it is not at all
appreciable to call a witness for crossexamination after such a long span of time.
It is imperative if the examination-in-chief
is over, the cross-examination should be
completed on the same day. If the
examination of a witness continues till late
hours the trial can be adjourned to the next
day
for
cross-examination.
It
is
inconceivable in law that the crossexamination should be deferred for such a
long time. It is anathema to the concept of
proper and fair trial.

57.5. The duty of the court is to
see that not only the interest of the accused
as per law is protected but also the societal
and collective interest is safeguarded. It is
distressing to note that despite series of
judgments of this Court, the habit of
granting adjournment, really an ailment,
continues. How long shall we say, "Awake!
Arise!". There is a constant discomfort.
Therefore, we think it appropriate that the
copies of the judgment be sent to the
learned Chief Justices of all the High
Courts for circulating the same among the
learned trial Judges with a command to
follow the principles relating to trial in a
requisite manner and not to defer the crossexamination of a witness at their pleasure
or at the leisure of the defence counsel, for
it eventually makes the trial an apology for
trial and compels the whole society to
suffer chicanery. Let it be remembered that
9 All. Dr. Vinay Kumar Jain Vs. State of U.P.
21
law cannot be allowed to be lonely; a
destitute."

9. A similar view has also been taken
by the Supreme Court in the case of Rajesh
Yadav and Another v. State of Uttar
Pradesh3.

10. In the present case, it appears that,
on account of a long gap of two months and
nine days between the examination-in-chief
and cross examination, the witness was
won over by the accused and she resiled
from the version as deposed in the
examination-in-chief
which
fully
incriminates the accused.

11. Considering the facts and
circumstances of the case, submissions
advanced by learned counsel for the parties,
complicity
of
accused,
severity
of
punishment and also considering the
aforesaid judgements of Supreme Court
and the facts as narrated above by learned
State Law Officer, I do not find it a fit case
to release the applicant on bail.

12.

The
bail
application
is,
accordingly, rejected.

13. However, it is directed that the
aforesaid case pending before the trial court
be decided expeditiously, in view of the
principle laid down in the recent judgements
of the Supreme Court in the cases of Vinod
Kumar vs. State of Punjab4 and Hussain
and Another vs. Union of India5, if there is
no legal impediment.

14. It is clarified that the observations
made herein are limited to the facts brought
in by the parties pertaining to the disposal
of
bail
application
and
the
said
observations shall have no bearing on the
merits of the case during trial.
----------
(2024) 9 ILRA 21
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 20.09.2024

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Criminal Misc. Anticipatory Bail Application U/S
438 CR.P.C. No. 1518 of 2024

Dr. Vinay Kumar Jain ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Prashant
Kumar,
Devesh
Srivastava,
Sarvesh Kumar Tiwari, Satish Gulati

Counsel for the Opposite Party:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 420, 425, 467, 468, 471 & 120-B
- As per F.I.R. nazul land registered at
page
No.89
vide
order
dated
29.08.1956/11.10.1956 in the name of
Kapura Devi to the tune of 66,844 sq ft -
In the said record, no order number was
written neither there was reference of
order on paper book, name of officer who
has made endorsement was also not on
record neither there was any stamp of
concerned office - The alleged record
appears to be forged - Further allegation
that at page No.2 on 12-16 line whitener
has been used which makes it suspicious -
Applicant contended he was not named in
F.I.R, but in the name of investigation he
has
been
called
several
times
for
interrogation by investigating agency,
therefore, there is an apprehension for
arrest. (Para 1, 3)

Held, civil suit was pending between
parties and dispute was civil in nature,
there was nothing on record to show that
applicant
was
not
cooperating
in
investigation
and
considering
the