# Bablu @ Vishnu Dhar Dubey v. State of U.P. & Anr

- **Citation:** (2021) 7 ILRA 682
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-16
- **Case number:** Application U/S 482 Cr.P.C. No. 6670 of 2021
- **Bench:** Dinesh Kumar Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bablu-vishnu-dhar-dubey-v-state-of-u-p-anr-47254
- **Pages:** 8

## Headnote

A. Criminal Procedure Code, 1973 - Section
319(4)(a) - Power to proceed against other
persons appearing to be guilty of offence -
proceedings in respect of such person to be
commenced a fresh & the witnesses reheard - the moment, an accused, who has
been
summoned
u/s
319
Cr.P.C.,
is
produced before Court, trial revert back to
first stage of trial - trial has to be a de novo
trial, which would include re-recording of
evidence of all witnesses in presence of
newly summoned accused (Para 18)

After conclusion of statement of P.W. 1, on
application u/s 319 Cr.P.C. accused applicant
was summoned - charges were framed against
the accused - thereafter witness P.W.1 was
proposed to be re-examined - but counsel for
the said accused applicant gave in writing that
the examination-in-chief of P.W. 1 had already
been recorded & therefore, he was ready to
cross-examine P.W.1 and whatever P.W. 1
stated
in
examination-in-chief,
before
summoning of the accused applicant, can be
taken to be an examination-in-chief recorded
against the accused applicant - Held - not
recording examination-in-chief of P.W. 1 in
presence of the applicant accused and his
counsel against the provision of law - Trial court
directed to give opportunity to the accused
applicant for recording of Examination-in-Chief
of the P.W. 1 in his presence and, thereafter to
cross-examine the said witness (Para 18, 20)

B. Practice and procedure - Evidence Act,
1872 - Section 115 - Estoppel against law
7 All. Bablu @ Vishnu Dhar Dubey Vs. State of U.P. & Anr.
683
- Concession - Wrong concession made by
parties - Concession of Lawyer - Binding
effect - there can be no estoppel against
law - if law lays down that a particular
procedure has to be followed while
conducting a de novo trial, it has to be
followed in letter and spirit - no deviation
can be allowed to happen even at the
concession/concurrence given by counsel
or party of any side (Para 18)

Allowed. (E-4)

List of Cases cited :

## Text

682 INDIAN LAW REPORTS ALLAHABAD SERIES

7. We have carefully considered the
submissions of learned counsel for the
parties and we find that an action under
section 107/116 Cr.P.C. has already been
taken by the State- respondents.

8. So far as the contention of the
petitioner that he be put in possession in a
particular portion of the disputed property
is concerned, we find that such a matter
shall not be covered by the provisions of
Section 22(1) of the Act, 2007 read with
Rule 21(2)(i) Rule 21(1) Sub-Rule 2 and 3
of the U.P. Rules, 2014. Such a dispute is
pure and simple a dispute of share and
possession of the disputed property which
can be decided in a partition suit.

9. For the reasons aforestated, we do
not find any good reason to grant relief as
sought by the petitioner, inasmuch as the
Act, 2007 does not confer power to the
Authorities to decide partition dispute and
share of parties in an immovable property.
Admittedly, the disputed property is an
ancestral property in which the parties have
undivided share. Thus, the petitioner cannot
ask for mandamus to the Authority under
the Act, 2007 to put him in possession in a
particular portion of the disputed property.
Therefore, no mandamus as prayed, can be
issued.

10. With the aforesaid observations
and without expressing any opinion on the
merits of the claim of the petitioner, the
writ petition is dismissed leaving it open
for the petitioner to avail such remedy as
may be available to him under law.
----------
(2021)07ILR A682
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.03.2021

BEFORE
THE HON'BLE DINESH KUMAR SINGH-I, J.

Application U/S 482 Cr.P.C. No. 6670 of 2021

Bablu @ Vishnu Dhar Dubey ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Atul Kumar Shahi, Sri Anoop Trivedi
(Senior Adv.)

Counsel for the Opposite Parties:
A.G.A., Sri Irfanul Huda

A. Criminal Procedure Code, 1973 - Section
319(4)(a) - Power to proceed against other
persons appearing to be guilty of offence -
proceedings in respect of such person to be
commenced a fresh & the witnesses reheard - the moment, an accused, who has
been
summoned
u/s
319
Cr.P.C.,
is
produced before Court, trial revert back to
first stage of trial - trial has to be a de novo
trial, which would include re-recording of
evidence of all witnesses in presence of
newly summoned accused (Para 18)

After conclusion of statement of P.W. 1, on
application u/s 319 Cr.P.C. accused applicant
was summoned - charges were framed against
the accused - thereafter witness P.W.1 was
proposed to be re-examined - but counsel for
the said accused applicant gave in writing that
the examination-in-chief of P.W. 1 had already
been recorded & therefore, he was ready to
cross-examine P.W.1 and whatever P.W. 1
stated
in
examination-in-chief,
before
summoning of the accused applicant, can be
taken to be an examination-in-chief recorded
against the accused applicant - Held - not
recording examination-in-chief of P.W. 1 in
presence of the applicant accused and his
counsel against the provision of law - Trial court
directed to give opportunity to the accused
applicant for recording of Examination-in-Chief
of the P.W. 1 in his presence and, thereafter to
cross-examine the said witness (Para 18, 20)

B. Practice and procedure - Evidence Act,
1872 - Section 115 - Estoppel against law
7 All. Bablu @ Vishnu Dhar Dubey Vs. State of U.P. & Anr.
683
- Concession - Wrong concession made by
parties - Concession of Lawyer - Binding
effect - there can be no estoppel against
law - if law lays down that a particular
procedure has to be followed while
conducting a de novo trial, it has to be
followed in letter and spirit - no deviation
can be allowed to happen even at the
concession/concurrence given by counsel
or party of any side (Para 18)

Allowed. (E-4)

List of Cases cited :

1. Shashikant Singh Vs Tarkeshwar Singh & ors
.(2002) 5 SCC 738

2. U.O.I. & ors Vs Mohanlal Likumal Punjabi &
ors. (2004) 3 SCC 628

3. U.O.I. & anr. Vs S.C. Parashar (2006) 3 SCC
167

4. Director of Elementary Education, Orissa &
ors. Vs. Pramod Kumar Sahoo 2019 (10)SCC
674

5. Harinarayan G. Bajaj Vs St. of Maha & ors.
(2010)11 SCC 520

(Delivered by Hon'ble Dinesh Kumar
Singh-I, J.)

1. Sri Anoop Trivedi, learned Senior
Advocate assisted by Sri Atul Kumar Shahi,
learned counsel for the applicant, Sri Irfanul
Huda, learned counsel for the O.P. No. 2 and
Sri Rishi Chaddha, learned A.G.A. for the
State are present.

2. The prayer is made for quashing the
order-sheet
dated
12.02.2021
passed
by
Additional Sessions Judge/ Special Judge
(Prevention of Corruption Act), Court No. 1,
District, Gorakhpur passed in S.T. No. 19 of 2015
(State Vs. Govind Yadav and others) arising out
of Case Crime No. 463 of 2014 under
Sections 147, 148, 149, 307, 302, 386, 396 and
504 I.P.C., P.S. Khorabad, District Gorakhpur.

3.

By
the
impugned
order,
Application 136 (kha) moved by the
accused applicant, has been rejected under
Section 319 (4)(a) Cr.P.C. wherein prayer
was made that prosecution witness, P.W. 1
should be re-summoned for recording his
examination-in-chief as said provision
required de novo trial. Further it was
mentioned in the said Application that
provision of Section 319 (4)(a) was not
followed by the court below as it did not
record the examination-in-chief of the said
witness. The said witness is informant of
this
case
who
has
given
an
Application/F.I.R. at the police station
(Exhibit Ka-1) which was proved by him.

4. From the side of prosecution,
objection was submitted before the court
below stating that charge-sheet was not
submitted against the accused applicant and
after the conclusion of statement of P.W. 1,
Shiv Pratap Yadav @ Sadhu Yadav, on
17.08.2015, an Application under Section
319 Cr.P.C. was given whereon the Court
had passed an order on 18.07.2016
summoning the said accused i.e. Vidyadhar
Dubey @ Bablu Dubey finding prima-facie
case made out against him and issued
N.B.W. against the said accused for his
appearance before the Court on 26.09.2016,
thereafter the trial court in consonance with
the provisions provided under Section 319
(4)(a) and (b), framed charges against the
accused and, thereafter the said witness,
Shiv Pratap Yadav @ Sadhu Yadav
(P.W.1) was proposed to be re-examined
but learned counsel for the said accused i.e.
applicant
gave
in
writing
that
the
684 INDIAN LAW REPORTS ALLAHABAD SERIES
examination-in-chief of Shiv Prasad Yadav
@ Sadhu Yadav had already been recorded
on 17.08.2015 and, therefore, he was ready
to cross-examine the said witness. Pursuant
to that, the court below provided the
accused applicant opportunity to crossexamine the said witness and the same was
concluded. The said fact is evident from the
order-sheet dated 22.11.2016 and ordersheets of subsequent dates. Therefore, it
was submitted from the side of prosecution
before the Court below that no legal error
was committed of the principles of law laid
down under Section 319 (1)(4) (a) and (b)
and, therefore, the said application ought to
be dismissed having no force.

5. After having heard both the sides,
the court below has recorded in the
impugned order that on 22.11.2016, P.W.
1, Shiv Prasad Yadav @ Sadhu Yadav was
present in Court and accused Bablu Dubey
@ Vidyadhar Dubey (applicant) also
remained present in Court and his learned
counsel had endorsed on the order-sheet in
Hindi that he was ready to cross-examine
the informant on the basis of his earlier
recorded
examination-in-chief
dated
17.08.2015. Therefore, in pursuance of that
undertaking/written endorsement, learned
counsel for the accused applicant started
cross-examination of P.W. 1, which could
not be concluded the same day, therefore,
on the next date also, his cross-examination
was recorded and concluded. Thereafter
P.W. 2 to P.W. 9 were also recorded fully
in presence of the accused applicant and
during the entire evidences of nine
witnesses having been recorded, counsel
for the accused applicant remained present,
therefore, it cannot be said that provisions
of Section 319 (4)(a) Cr.P.C. was not
followed and, hence Application under
Section 136 (kha) was found without force
and was recorded that there was no need
for recording the examination-in-chief of
P.W. 1 again i.e. de novo trial with respect
to recording of statement of P.W. 1 was not
needed. It is also recorded by the trial court
that two accused in this case were detained
in prison for long and argument of the
prosecution
has
been
concluded
on
8.01.2021 and for the argument of the
defense side, four dates had been fixed but
despite various efforts having been made
by Court, defense side was not advancing
its arguments and, hence it was apparent
that only with a view to delaying the
disposal of this case, the said application
had been moved and accordingly, the same
was rejected.

6. Learned counsel for the applicant
has vehemently argued that trial court's
order is erroneous because it has rejected
the Application 136 (kha) whereby prayer
was made for re-summoning the P.W. 1
again because the provision under Section
319 (4)(a) Cr.P.C. clearly states that
proceedings in respect of such person shall
be commenced afresh and witnesses reheard and, therefore, the provision is very
much clear that P.W. 1 ought to have been
re-summoned and re-examined in presence
of the accused applicant despite the fact
that there was concurrence/concession
given from the side of learned counsel for
the accused before the court below that he
was ready to cross-examine the said
witness on the basis of his earlier recorded
examination-in-chief.
For
proving
his
point, he has relied upon the judgement of
Hon'ble Apex Court in Shashikant Singh
Vs. Tarkeshwar Singh and Ors. (2002) 5
SCC 738, para 9 of which is quoted herein
below:

"9. The intention of the provision
here is that where in the course of any
enquiry into, or trial of, an offence, it
7 All. Bablu @ Vishnu Dhar Dubey Vs. State of U.P. & Anr.
685
appears to the court from the evidence that
any person not being the accused has
committed any offence, the court may
proceed against him for the offence which he
appears to have committed. At that stage, the
court would consider that such a person
could be tried together with the accused who
is already before the court facing the trial.
The safeguard provided in respect of such
person is that, the proceedings right from the
beginning
have
mandatorily
to
be
commenced
afresh
and
the
witnesses
reheard. In short, there has to be a de novo
trial against him. The provision of de novo
trial is mandatory. It vitally affects the rights
of a person so brought before the court. It
would not be sufficient to only tender the
witnesses for the cross-examination of such a
person. They have to be examined afresh.
Fresh examination-in-chief and not only their
presentation for the purpose of the crossexamination of the newly added accused is
the mandate of Section 319(4). The words
"could be tried together with the accused" in
Section 319(1), appear to be only directory.
"Could be" cannot under these circumstances
be held to be "must be". The provision cannot
be interpreted to mean that since the trial in
respect of a person who was before the court
has concluded with the result that the newly
added person cannot be tried together with
the accused who was before the court when
order under Section 319(1) was passed, the
order
would
become
ineffective
and
inoperative, nullifying the opinion earlier
formed by the court on the basis of the
evidence before it that the newly added
person appears to have committed the offence
resulting in an order for his being brought
before the court."

7. It is apparent from the above
position of law that in case, an accused is
summoned under Section 319 Cr.P.C. to be
tried
with
other
accused,
fresh
examination-in-chief was required to be
taken/recorded in his presence and that it
was not sufficient to allow only the crossexamination
of
such
witness
whose
examination-in-chief had been recorded
earlier.

8. Learned A.G.A. as well as learned
counsel for the informant vehemently
opposed the argument stating that once the
concession/concurrence has been given by
learned counsel for the accused that he was
ready to treat earlier recorded examinationin-chief of P.W.1 to be the examination-inchief, to be read against the accused
applicant and on that basis, he proceeded to
cross-examine the said witness and not
only that, even thereafter, he allowed eight
more witnesses to be examined in totality,
now it cannot be raised by him again to say
that there was lacuna left in the case that it
did not meet the requirement of the
provision of Section 319 (4)(a) of Cr.P.C.
which required de novo trial i.e. trial afresh
and further it was stressed by him that in
the impugned order, court below has
recorded that not only learned counsel for
the accused applicant had noted in the
order-sheet that he was ready to crossexamine P.W. 1 but it was written on the
order-sheet in presence of the party
(applicant), therefore, applicant as well as
his counsel shall be treated to be estopped
by their earlier statements.

9. In support of the said view point,
law was required by the Court to be cited
from the side of learned A.G.A. but he
could not provide any such law which
would substantiate the above argument
rather the law which has been cited by him
appears to place the position of law that a
wrong concession made by counsel before
686 INDIAN LAW REPORTS ALLAHABAD SERIES
the Court on pure question of law, would
not be treated to be binding upon the party
and it appears that counsel would also
include party because in the present case
not only counsel but party was also present
and any concurrence by even party that he
did not require P.W. 1 to be re-examined
while law has mandated that witness ought
to be re-heard (his statement in chief as
well as cross-examination both were
recorded in presence of the accused), the
said provision ought to have been followed
as per the mandate. Even party cannot be
allowed
to
give
any
concession/
concurrence which is not in consonance
with the law.

10. Citation which has been provided
from the side of learned A.G.A. are as
follows:-

Union of India and Others Vs.
Mohanlal Likumal Punjabi and Others
(2004) 3 SCC 628, para nos. 8 and 9 are as
follows:-

"8. We shall first deal with the
effect of concession, if any, made by
learned counsel appearing for the present
appellants before the High Court. Closer
reading of the High Court's order shows
that the High Court took the view that in
view of the revocation of the order on 1912-1994 and the order passed by the High
Court on 11-1-1995, no further order could
have been passed under Section 7 of the
SAFEMA. After having expressed this view,
the so-called concession is recorded. In our
view the concession, if any, is really of no
consequence,
because
the
wrong
concession made by a counsel cannot bind
the parties when statutory provisions
clearly provided otherwise. It was observed
by a Constitution Bench of this Court in
Sanjeev Coke Mfg. Co. v. Bharat Coking
Coal Ltd. [(1983) 1 SCC 147] that courts
are not to act on the basis of concession but
with reference to the applicable provisions.
The view has been reiterated in Uptron
India Ltd. v. Shammi Bhan [(1998) 6 SCC
538 : 1998 SCC (L&S) 1601] and Central
Council for Research in Ayurveda &
Siddhav. Dr K. Santhakumari [(2001) 5
SCC 60 : 2001 SCC (L&S) 772] . In para
12 of Central Council case [(2001) 5 SCC
60 : 2001 SCC (L&S) 772] it was observed
as follows: (SCC p. 64, para 12).

"12. In the instant case, the
selection was made by the Departmental
Promotion Committee. The Committee must
have considered all relevant facts including
the inter se merit and ability of the
candidates and prepared the select list on
that basis. The respondent, though senior
in comparison to other candidates, secured
a lower place in the select list, evidently
because the principle of 'merit-cumseniority'
had
been
applied
by
the
Departmental Promotion Committee. The
respondent has no grievance that there
were any mala fides on the part of the
Departmental Promotion Committee. The
only contention urged by the respondent is
that
the
Departmental
Promotion
Committee did not follow the principle of
'seniority-cum-fitness'. In the High Court,
the appellants herein failed to point out
that the promotion is in respect of a
'selection post' and the principle to be
applied is 'merit-cum-seniority'. Had the
appellants pointed out the true position, the
learned Single Judge would not have
granted relief in favour of the respondent.If
the learned counsel has made an admission
or concession inadvertently or under a
mistaken impression of law, it is not
binding on his client and the same cannot
enure to the benefit of any party."
(italicized for emphasis)

9. In Uptron India Ltd. v. Shammi
Bhan [(1998) 6 SCC 538 : 1998 SCC
7 All. Bablu @ Vishnu Dhar Dubey Vs. State of U.P. & Anr.
687
(L&S) 1601] it was held that a case
decided on the basis of wrong concession
of a counsel has no precedent value. That
apart, the applicability of the statute or
otherwise to a given situation or the
question
of
statutory
liability
of
a
person/institution under any provision of
law would invariably depend upon the
scope and meaning of the provisions
concerned and has got to be adjudged not
on any concession made. Any such
concessions would have no acceptability or
relevance while determining rights and
liabilities incurred or acquired in view of
the axiomatic principle, without exception,
that there can be no estoppel against
statute."

11. It is apparent from the above
citation that wrong concession made by
counsel before the Court cannot bind the
parties when statutory provision clearly
provides otherwise.

12. Union of India and Another Vs.
S.C. Parashar (2006) 3 SCC 167, para nos.
11,12 and 13 are as follows:-

"11. Before adverting to the said
question, we may record that wrong
concession of a counsel on a pure question
of law is not binding upon a party. It is
furthermore trite that non-mentioning or
wrong mentioning of a provision in an
order may be held to be irrelevant if it is
found that the requisite ingredients thereof
were available on records for passing the
same. We may further notice that the High
Court proceeded on the basis that the
penalty imposed upon him was a major
penalty.

12. The penalty imposed upon the
respondent is an amalgam of minor penalty
and major penalty. The respondent has
been inflicted with three penalties: (1)
reduction to the minimum of the timescale
of pay for a period of three years with
cumulative effect; (2) loss of seniority; and
(3) recovery of 25% of the loss incurred by
the Government to the tune of Rs
74,341.89p. i.e. Rs 18,585.47p. on account
of damage to the Gypsy in 18 (eighteen)
equal
monthly
instalments.
Whereas
reduction
of
timescale
of
pay
with
cumulative effect is a major penalty within
the meaning of clause (v) of Rule 11 of the
CCS Rules, loss of seniority and recovery
of amount would come within the purview
of minor penalty, as envisaged by clauses
(iii) and (iii)(a) thereof. The disciplinary
authority, therefore, in our opinion acted
illegally
and
without
jurisdiction
in
imposing both minor and major penalties
by the same order. Such a course of action
could not have been taken in law.

13. However, there cannot be any
doubt whatsoever that the disciplinary
authority never intended to impose a minor
penalty. The concession of the learned
counsel appearing for the appellant before
the High Court was apparently erroneous.
It is now well settled that wrong concession
made by a counsel before the court cannot
bind the parties when statutory provisions
clearly provide otherwise. (See Union of
India v. Mohanlal Likumal Punjabi[(2004)
3 SCC 628 : 2004 SCC (Cri) 844] .) The
penalty imposed upon the respondent, in
our considered view, therefore, should be
kept confined to the reduction to the
minimum of the timescale of pay for a
period of three years with cumulative
effect. The effect of such a penalty has been
considered by this Court in Shiv Kumar
Sharma v. Haryana SEB [1988 Supp SCC
669 : 1989 SCC (L&S) 51 : (1988) 8 ATC
688 INDIAN LAW REPORTS ALLAHABAD SERIES
792 : AIR 1988 SC 1673] in the following
terms: (SCC pp. 671-72, para 6)

"6. We are unable to accept the
above contention. The penalty was imposed
on 15-4-1968 and, as a result of which, he
was deprived of the monetary benefit of one
increment for one year only. The penalty by
way of stoppage of one increment for one
year was without any future effect. In other
words, the appellant's increment for one
year was stopped and such stoppage of
increment will have no effect whatsoever
on his seniority. Accordingly, the Board
acted illegally and most arbitrarily in
placing the juniors of the appellant above
him in the seniority list and/or confirming
the appellant in the post with effect from 112-1969, that is, long after the date of
confirmation of the said Respondents 2 to
19. The question of seniority has nothing to
do with the penalty that was imposed upon
the appellant. It is apparent that for the
same act of misconduct, the appellant has
been punished twice, that is, first, by the
stoppage of one increment for one year
and, second, by placing him below his
juniors in the seniority list."

13. It is apparent from the above
citation that wrong concession made by
counsel before Court on pure question of
law, was not binding upon the party.

14.

Director
of
Elementary
Education, Orissa and Others Vs. Pramod
Kumar Sahoo 2019 (10)SCC 674 para 11
of which is as follows:-

"11. The concession given by the
learned State Counsel before the Tribunal
was a concession in law and contrary to
the statutory rules. Such concession is not
binding on the State for the reason that
there cannot be any estoppel against law.
The rules provide for a specific grade of
pay, therefore, the concession given by the
learned State Counsel before the Tribunal
is not binding on the appellant."

15. It is apparent from the above
citation that concession made by advocate
contrary to statutory rules, is not binding on
State as there cannot be estoppel against
law.

16. Another ruling, Harinarayan G.
Bajaj Vs. State of Maharashtra & Others
(2010)11 SCC 520 relates to Complaint
Case but Principle of Law with respect to
Section 319 Cr.P.C. would remain the
same, hence, relevant para 20 of this ruling
is as follows:

"20.Therefore, the situation is
clear that under Section 244 CrPC the
accused has a right to cross-examine the
witnesses and in the matter of Section 319
CrPC when a new accused is summoned,
he would have similar right to crossexamine the witness examined during the
inquiry afresh. Again, the witnesses would
have to be reheard and then there would be
such a right. Merely presenting such
witnesses for cross-examination would be
of no consequence. This Court has already
held so in Shashikant Singh v. Tarkeshwar
Singh [(2002) 5 SCC 738 : 2002 SCC (Cri)
1203] ."

17. It is apparent from the above
citation that merely providing a witness in
such a situation for cross-examination
would be of no consequence because
witness has to be re-heard keeping in view
the principle of de novo trial which
includes examination-in-chief as well.

18. After having gone through the
arguments of rival sides, this Court is of the
view that the law is very clear in respect of
7 All. Shiksha Educational Trust & Ors. Vs. State of U.P. & Anr.
689
an accused who has been summoned to face
trial under Section 319 Cr.P.C. that the moment
he has been produced as an accused before
Court, the trial would revert back to the first
stage of trial and the entire evidence has to be
recorded again afresh in keeping with the
mandate of law that trial has to be a de novo
trial and on the basis of citations which have
been relied upon by the learned A.G.A. quoted
above, it is also very clear that there can be no
estoppel against law, therefore, if law lays down
that a particular procedure has to be followed
while conducting a de novo trial, it has to be
followed in letter and spirit as mandated under
law and no deviation can be allowed to happen
even at the concession/ concurrence given by
counsel or party of any side. In the case at hand,
it appears that learned counsel for the applicant/
accused when facing trial before the court
below, had given in writing that he was ready to
cross-examine P.W. 1 and whatever he had
stated
in
examination-in-chief
before
summoning of the accused applicant can be
taken to be an examination-in-chief recorded
against the accused applicant but that would be
against the principle of law laid down under
Section 319 (4) (a) of Cr.P.C. as it mandated de
novo trial which would include re-recording of
evidence of all witnesses. In the present case,
there is no dispute with respect to recording of
statements of other witnesses of prosecution i.e.
P.W. 2 to P.W. 9 in presence of accused
applicant in totality but dispute is there only
with regard to not recording the statement
(examination-in-chief) of P.W. 1 in presence of
the applicant and his counsel because of the
written consent having been given on their part
that they were ready to cross-examine the said
witness, therefore, same is being found against
the provision of law.

19. The impugned order suffers from
infirmity and present Application under Section
482 Cr.P.C. deserves to be allowed and is,
accordingly allowed. Application of the
applicant has been wrongly dismissed by the
court below, hence impugned order needs to be
set-aside and is, accordingly set-aside.

20. It is directed that the trial court shall
give opportunity to the accused applicant for
recording of Examination-in-Chief of the P.W.
1 in his presence and, thereafter he shall also be
provided full opportunity to cross-examine the
said witness in order to meet the mandate of
law.

21. Looking to the fact that this case is
very old and the stage of argument is already
reached but this infirmity has been pointed out
very late, therefore this Court expects that the
trial court shall fix specific date for recording
the statement (examination-in-chief) of P.W. 1
and would try to conclude the entire evidence of
the said witness on the same date or on
subsequent consecutive dates till the statement
of P.W. 1 is concluded without giving any
undue adjournment to either side and would try
to
conclude
this
case
at
the
earliest
expeditiously.
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(2021)07ILR A689
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.07.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.

Application U/S 482 Cr.P.C. No. 6747 of 2021

Shiksha Educational Trust & Ors.
 ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants: