# Ansad Badruddin v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2024) 2 ILRA 1076
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-24
- **Case number:** Application u/s 482 No. 662 of 2024
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ansad-badruddin-v-state-of-u-p-anr-opp-parties-51227
- **Pages:** 5

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 231, 231(2) & 482 - The
Unlawful Activities (Prevention) Act, 1967
- Sections 13, 16, 18 & 20 - Indian
Evidence Act, 1872 - Sections 135 & 138 -
Arms Act, 1959 - Sections 3, 25 & 35 -
Explosive Substances Act, 1908 - Sections
3, 4, 5(v), 11, 12 & 13-B, - Indian Penal
Code, 1860 - Sections 120-B & 121-A -
Application U/s 482 Cr.P.C. - for quashing the
impugned
trial
court
orders
allowing
examination-in-chief
without
timely
crossexamination as well as the entire criminal
proceedings - petitioner claimed that, the trial
court conducted examination-in-chief of several
prosecution witnesses (PW-3 to PW-7) without
allowing
timely
cross-examination
by
the
petitioner, thereby violating procedural fairness
2 All. Ansad Badruddin Vs. State of U.P. & Anr.
1077
and natural justice - court after considering the
relevant provisions of Section 135 & 138 of the
Evidence Act as well as section 231 of Cr.P.C.
and also having regard to the dictum of Apex
Court in case of 'St. of Kerala Vs Rasheed',-
consequently, present Application is disposed of
-
with
direction
to
conduct
the
crossexamination of PW-2 to PW-9 on day-to-day
basis
before
further
chief-examinations
-
direction also issued for expeditious trial.

(Para - 5, 9, 11, 12, 13)

Application Disposed of. (E-11)

List of referred Cases: -

## Text

1076 INDIAN LAW REPORTS ALLAHABAD SERIES

506. Punishment for criminal
intimidation.-

Whoever commits, the offence of
criminal intimidation shall be punished
with imprisonment of either description for
a term which may extend to two years, or
with fine, or with both;If threat be to cause
death or grievous hurt, etc.- And if the
threat be to cause death or grievous hurt,
or to cause the destruction of any property
by fire, or to cause an offence punishable
with death or imprisonment for life, or with
imprisonment for a term which may extend
to seven years, or to impute, unchastity to a
woman,
shall
be
punished
with
imprisonment of either description for a
term which may extend to seven years, or
with fine, or with both."

22. There is absolutely no averment
made by the complainant or any other
witness so as to even prima facie establish
that the applicant had threatened the
complainant that any injury to her person,
reputation or property, or to the person or
reputation of anyone in whom that person
is interested, with intent to cause alarm to
the complainant, or to do any act which she
is not legally bound to do, or to omit to do
any such act. Therefore, the commission of
offence under Section 506 I.P.C. is also not
made out against the applicant on the basis
of the averments made by the complainant
in and her witnesses.

23. From the foregoing discussion, it
appears that the learned trial court has
summoned the applicant to face the trial for
the offences under Sections 493, 496, 506
I.P.C without taking into consideration the
aforesaid aspects of the matter.

24. Resultantly, the application under
Section 482 Cr.P.C. is allowed. The
impugned
order
dated
17.07.2023,
summoning the applicant to face trial and
the entire proceedings of Complaint Case
No.33 of 2019: Vinita Chaudhari Vs. Pragat
Gupta, under Sections 493, 496 & 506
I.P.C. Police Station Bachhrawan, District
Raebareli pending in the court of learned
Civil Judge (Junior Division)/FTC-III,
Raebareli are hereby quashed.
----------
(2024) 2 ILRA 1076
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 24.01.2024

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Application u/s 482 No. 662 of 2024

Ansad Badruddin ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sheeran Mohiuddin Alavi, Harsh Vardhan Kediya,
Ishan Baghel

Counsel for the Opp. Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 231, 231(2) & 482 - The
Unlawful Activities (Prevention) Act, 1967
- Sections 13, 16, 18 & 20 - Indian
Evidence Act, 1872 - Sections 135 & 138 -
Arms Act, 1959 - Sections 3, 25 & 35 -
Explosive Substances Act, 1908 - Sections
3, 4, 5(v), 11, 12 & 13-B, - Indian Penal
Code, 1860 - Sections 120-B & 121-A -
Application U/s 482 Cr.P.C. - for quashing the
impugned
trial
court
orders
allowing
examination-in-chief
without
timely
crossexamination as well as the entire criminal
proceedings - petitioner claimed that, the trial
court conducted examination-in-chief of several
prosecution witnesses (PW-3 to PW-7) without
allowing
timely
cross-examination
by
the
petitioner, thereby violating procedural fairness
2 All. Ansad Badruddin Vs. State of U.P. & Anr.
1077
and natural justice - court after considering the
relevant provisions of Section 135 & 138 of the
Evidence Act as well as section 231 of Cr.P.C.
and also having regard to the dictum of Apex
Court in case of 'St. of Kerala Vs Rasheed',-
consequently, present Application is disposed of
-
with
direction
to
conduct
the
crossexamination of PW-2 to PW-9 on day-to-day
basis
before
further
chief-examinations
-
direction also issued for expeditious trial.

(Para - 5, 9, 11, 12, 13)

Application Disposed of. (E-11)

List of referred Cases: -

1. St. of Kerala Vs Rasheed - 2019 vol. 13 SCC
297.

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Ishan Baghel, learned
counsel for the petitioner and Sri Pradeep
Tiwari holding brief of Sri Shiv Nath
Tilhari, learned counsel for opposite party
no. 2 as well as Sri Ram Raj, learned AGA
for the State.

2. By means of this petition under
Section 482 Cr.P.C., the petitioner has
prayed the following main reliefs:

"WHEREFORE,
it
is
most
respectfully prayed that this Hon'ble Court
may graciously be pleased to set-aside the
order dated 24.04.2023 passed by the
learned Special Judge NIA/ATS, Lucknow
in Sessions Case No. 1309 of 2021 (State of
Uttar Pradesh v. Ansad Badruddin and
Another), wherein, the examination-in-chief
of the prosecution witnesses PW-3 and PW4 was conducted while the examination-inchief of the PW-2 remained pending, as
well as the orders 02.05.2023 and
15.05.2023 passed by the learned Special
Judge NIA/ATS, Lucknow in Sessions Case
No. 1309 of 2021 (State of Uttar Pradesh v.
Ansad Badruddin and Another), wherein
the learned Trial Court has proceeded to
direct that examination-in-chief of all the
prosecution witnesses, relied upon in the
charge-sheet, be conducted and thereafter
the said prosecution witnesses be called for
cross examination by the defence, may also
kindly be quashed, in the interest of justice.

Further, this Hon'ble Court may
also kindly be pleased to direct the learned
Special Judge NIA/ATS, Lucknow to
conduct the proceedings of Sessions Case
No.1309 of 2021 (State of Uttar Pradesh v.
Ansad Badruddin and Another) in legal and
lawful manner, by providing reasonable
opportunity to the applicant/accused to
cross-examine the prosecution witnesses,
before calling the rest of the prosecution
witnesses for conducting examination-inchief, in the interest of justice.

It is further prayed that the entire
proceedings of Sessions Case No.1309 of
2021 (State of Uttar Pradesh v. Ansad
Badruddin and Another), arising out of FIR
No. 04 of 2021, Police Station ATS, Gomti
Nagar, District Lucknow, pending in the
Court of the learned Special Judge
NIA/ATS, Lucknow, under Sections 120-B,
121-A I.P.C., Sections 13, 16, 18 and 20 of
UAPA, 1967 and Sections 3, 4 and 5 of
Explosive Substances Act, 1908 and 3, 25
and 35 Arms Act, 1959, may kindly remain
stayed during the pendency of the present
Application, in the interest of justice."

3. At the very outset, learned counsel
for the petitioner has informed that the
cross-examination of PW-1 has been done
by the present petitioner, however the same
opportunity has been closed for other coaccused persons. Learned counsel for the
petitioner has drawn attention of this Court
towards Annexure No. 1 showing the
orders dated 24.04.2023, 02.05.2023 and
1078 INDIAN LAW REPORTS ALLAHABAD SERIES
15.05.2023 whereby the examination-inchief of PW-3, PW-5, PW-6, PW-7 has
been done, however none of the aforesaid
prosecution witnesses have been permitted
to be cross-examined by the petitioner and
the order dated 15.05.2023 reveals that the
learned trial court has observed that after
recording the examination-in-chief of all
the prosecution witnesses, the opportunity
of cross-examination would be provided to
the petitioner.

4. Learned counsel for the petitioner
has referred Section 135 and 138 of the
Evidence Act, 1872. Section 135 of the Act
provides the order of production and
examination of witnesses and Section 138
of
the Act
provides
the
order
of
examinations. For convenience, Sections
135 and 138 of the Evidence Act read as
under:

"135. Order of production and
examination of witnesses.?The order in
which
witnesses
are
produced
and
examined shall be regulated by the law and
practice for the time being relating to civil
and criminal procedure respectively, and,
in the absence of any such law, by the
discretion of the Court.

138.
Order
of
examinations.?Witnesses shall be first
examined-in chief then (if the adverse party
so desires) cross-examined, then (if the
party calling him so desires) re-examined.

The
examination
and
crossexamination must relate to relevant facts
but the cross-examination need not be
confined to the facts to which the witness
testified on his examination-in-chief."

5. As per Section 138, the witnesses
shall be first examined-in-chief then if the
adverse party so desires, cross examined,
then if the party calling him so desires, reexamined. In other words, the examinationin-chief of the witness would be done first
then he would be cross-examined and if
there is any need, he may be re-examined.
The aforesaid procedure is adopted by the
learned trial court, therefore, for the
convenience of the parties and also in the
interest of justice, all the three steps, if so
required, may be done one by one. After
recording of examination-in-chief of any
witness, he should be cross-examined,
thereafter if it is so needed, he may be reexamined.

6. Learned counsel for the petitioner
has stated that if the examination-in-chief
of all the prosecution witnesses is recorded,
then their cross-examination would not be
convenient for the Advocate of the
petitioner, therefore he has requested that
all
the
prosecution
witnesses
whose
examination-in-chief has been recorded i.e.
prosecution witnesses nos. 2 to 9, they be
cross-examined by the petitioner one by
one. After the aforesaid cross-examination
of PW-2 to PW-9, the examination-in-chief
of the other prosecution witnesses be
recorded.

7. Learned counsel for the petitioner
has stated that for the aforesaid crossexamination, the short dates may be fixed
but the petitioner may be given opportunity
to
cross-examine
all
the
aforesaid
prosecution witnesses one by one.

8. On the other hand, learned counsel
for opposite party no. 2 has referred
Section 231 of the Cr.P.C. which provides
evidence for prosecution. Learned counsel
has referred Sub Clause 2 of Section 231
Cr.P.C. which provides that the trial judge
may, as per his discretion, permit the crossexamination of any witness to be deferred
until any witness or witnesses have been
2 All. Ansad Badruddin Vs. State of U.P. & Anr.
1079
examined or recall any witness for further
cross-examination, therefore, the learned
trial court has rightly observed in the order
dated
15.05.2023
that
after
chiefexamination
of
all
the
prosecution
witnesses, those may be cross-examined by
the petitioner.

9. Replying the aforesaid contention
of learned counsel for opposite party no. 2,
Sri Baghel has referred a judgment of Apex
Court in Re: State of Kerala Vs. Rasheed
reported in [(2019) 13 SCC 297] wherein
the Apex Court in Para nos. 18, 22 and 23
has held that the examination of witness
should be done in accordance with Section
138 of the Act, 1872 and there cannot be a
straitjacket formula providing for the
grounds on which judicial discretion under
Section 231(2) Cr.P.C. can be exercised as
it shall depend on case-to-case basis. Vide
Para 23 thereof, the factors have been
explained by the Apex Court, deciding the
application under Section 231(2) Cr.P.C.
For the convenience, Para nos. 18, 22 and
23 of the judgment read as under:

"18. What follows from the
discussion is that the norm in any criminal
trial is for the examination-in-chief of
witnesses to be carried out first, followed
by cross-examination, and re-examination
if required, in accordance with Section 138
of the Indian Evidence Act, 1872. Section
231(2) of the Cr.P.C., however, confers a
discretion on the Judge to defer the crossexamination of any witness until any other
witness or witnesses have been examined,
or recall any witness for further crossexamination, in appropriate cases. Judicial
discretion
has
to
be
exercised
in
consonance with the statutory framework
and
context
while
being
aware
of
reasonably foreseeable consequences.5 The
party seeking deferral under Section 231(2)
of the Cr.P.C. must give sufficient reasons
to invoke the exercise of discretion by the
Judge, and deferral cannot be asserted as a
matter of right.

22. There cannot be a straitjacket
formula providing for the grounds on which
judicial discretion under Section 231(2) of
the Cr.P.C. can be exercised. The exercise
of discretion has to take place on a case-tocase basis. The guiding principle for a
Judge under Section 231(2) of the Cr.P.C. is
to ascertain whether prejudice would be
caused to the party seeking deferral, if the
application is dismissed.

23.
While
deciding
an
Application under Section 231(2) of the
Cr.P.C., a balance must be struck between
the rights of the accused, and the
prerogative of the prosecution to lead
evidence. The following factors must be
kept in consideration:

(i) possibility of undue influence
on witness(es);

(ii) possibility of threats to
witness(es);

(iii) possibility that non-deferral
would enable subsequent witnesses giving
evidence on similar facts to tailor their
testimony
to
circumvent
the
defence
strategy;

(iv) possibility of loss of memory
of the witness(es) whose examination-inchief has been completed;

(v) occurrence of delay in the
trial, and the non-availability of witnesses,
if deferral is allowed, in view of Section
309(1) of the Cr.P.C.

These factors are illustrative for
guiding the exercise of discretion by a
Judge under Section 231(2) of the Cr.P.C."

10. Sri Baghel has also referred
Annexure No. 5 which a judgment and
order dated 28.04.2023 passed by this
Court in Application U/s 482 Cr.P.C. No.
1080 INDIAN LAW REPORTS ALLAHABAD SERIES
4201 of 2023 (Sallahuddin Vs. State of U.P.
and Others), whereby application of
Section 231(2) of Cr.P.C. has been
discussed in the light of dictum of Apex
Court in re: Rasheed (supra).

11. Having heard learned counsel for
the parties, having perused the material
available on record, the relevant provisions
of Section 135 and 138 of the Evidence Act
as well as Section 231 of Cr.P.C. and also
having regard to the dictum of Apex Court
in re:Rasheed (supra), I am of the
considered opinion that the examination of
any witness should be done strictly in
accordance with Section 138 of the Act,
1872 and the discretion so conferred upon
the trial court under Section 231(2) Cr.P.C.
must be applied judicially and carefully
giving specific reasons to that effect, so as
to achieve the interest of justice of the
cause and the parties.

12. In the present case, the learned
trial court has not given any reasons as to
why he has not permitted the defence side
for cross-examination of the prosecution
witnesses after completion of examinationin-chief.

13. Hence, I find it appropriate to
issue direction to the effect that those
prosecution witnesses whose examinationin-chief has been completed i.e. PW-2 to
PW-9,
their
cross-examination
be
conducted by the petitioner one by one. It is
upon the trial court that the aforesaid crossexamination may be conducted on day-today bass. After the cross-examination of the
aforesaid prosecution witnesses i.e. from
PW-2 to PW-9, the examination-in-chief of
the other prosecution witnesses may be
permitted to be done. The learned trial
court shall also ensure that the trial in
question is conducted and concluded with
expedition
and
no
one
unnecessary
adjournment is given to any of the parties.

14. In view of the aforesaid
observations, this petition is disposed of.
----------
(2024) 2 ILRA 1080
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 29.01.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application u/s 482 No. 711 of 2024

Ram Sajiwan & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Dilip Kumar Pandey

Counsel for the Opp. Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power, Section 190 (1) (b) - Magistrate
empowered to take cognizance of any
offence upon a police report of facts which
constitute such offence , Indian Penal
Code, 1860 - Sections 323, 354B, 504, 506
- Magistrate has the power to take
cognizance of an offence under Section
190(1)(b)
CrPC
based
on
the
facts
disclosed in the police report, even if the
police report does not mention the specific
offence - Trial court can summon the
accused for trial of additional offences not
mentioned in the charge sheet if sufficient
material exists - Veracity of witness
statements is to be evaluated during trial,
not at the discharge/quashing stage -
Court's jurisdiction under Section 482
CrPC is limited; it cannot conduct a minitrial or assess evidence.(Para -12,16,19)

Dispute over parking led to altercation and
alleged molestation - FIR lodged against