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

- **Citation:** (2022) 3 ILRA 303
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-16
- **Case number:** Application U/S 482 No.3716 of 2022
- **Bench:** Brij Raj Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bablu-vishnu-dhar-dubey-v-state-of-u-p-anr-47581
- **Pages:** 6

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Section 319(1) - The
provision of de-novo trial is mandatory for the
accused summoned u/S 319 Cr.P.C. It vitally
affects the rights of the person so brought before
the court. It would not be sufficient to tender the
witnesses for cross examination of such a person.
Rather, they have to be examined afresh
B. Criminal Law - Code of Criminal
Procedure, 1973 - Section 319(1) - The
words 'could be tried together with the accused'
in Section 319 Cr.P.C. appear to be only
directory. 'Could be' cannot under these
circumstances be held to be 'must be'.

Application allowed. (E-12)

List of Cases cited:-

## Text

3 All. Bablu @ Vishnu Dhar Dubey Vs. State of U.P. & Anr.
303
consider pros and cons of the case and to
hold an enquiry to find out truth.
Marshalling and appreciation of evidence is
not in the domain of the court at that point
of time. What is required from the court is
to sift and weigh the materials for the
limited purpose of finding out whether or
not a prima facie case for framing a charge
against the accused has been made out.
Even in a case of grave or strong suspicion
charge can be framed. The court has to
consider broad probabilities of the case,
total effect of the evidence and the
documents
produced
including
basic
infirmities, if any. If on the basis of the
material on record, the court could form an
opinion that the accused might have
committed offence, it can frame the charge,
but the court should not weigh the evidence
as if it were holding trial. Accused can be
discharged only when the charge is
groundless.

15. In my considered opinion, learned
Chief Judicial Magistrate Shravasti as well
as learned Sessions Judge has taken into
account all the relevant material and passed
the impugned orders keeping in view the
parameters laid down by Hon'ble Apex
Court. It does not appear to be a case which
is to be closed at the stage of charge.
Therefore, the submission of the learned
counsel for applicant that no charge was
made out has no substance.

16. For the reasons discussed above,
the application under Section 482 Cr.P.C.
no merits and is accordingly dismissed.

17. Interim order, if any, stands
vacated.

18. Since the matter is pending since
long time before the trial court, therefore, it
is directed that the trial court take endevour
to expedite the present case expeditiously.
----------
(2022)03ILR A303
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.03.2021

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.

Application U/S 482 No.3716 of 2022

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

Counsel for the Applicant:
Sri Mohd. Rashid Siddiqui, Sri Abhnav Gaur,
Sri Ankit Shukla, Ms. Ballabhi Shukla, Sri
Anoop Trivedi (Sr. Adv.)

Counsel for the Opposite Parties:
A.G.A., Sri Irfanul Huda, Sri O.P. Singh (Sr.
Adv.)

A.
Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 319(1) - The
provision of de-novo trial is mandatory for the
accused summoned u/S 319 Cr.P.C. It vitally
affects the rights of the person so brought before
the court. It would not be sufficient to tender the
witnesses for cross examination of such a person.
Rather, they have to be examined afresh
B. Criminal Law - Code of Criminal
Procedure, 1973 - Section 319(1) - The
words 'could be tried together with the accused'
in Section 319 Cr.P.C. appear to be only
directory. 'Could be' cannot under these
circumstances be held to be 'must be'.

Application allowed. (E-12)

List of Cases cited:-

1. Tahir & anr. Vs St. of U.P. 2000(1) JIC
588(All)
304 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Shashi Kant Singh Vs Tarkeshwar Singh & ors.
(2002)5 SCC 738

3. Nayeem Vs St. of U.P. 2002(2) JIC 389(All)

4. Jokhan Patel Vs St. of U.P. 2001(2) JIC
459(All)
(Delivered by Hon'ble Brij Raj Singh, J.)

1. Heard Mr. Anoop Trivedi, learned
Senior Advocate assisted by Ms. Ballabhi
Shukla, learned counsel for the applicant,
Mr. O.P. Singh, learned Senior Advocate
assisted by Mr. Irfanful Huda, learned
counsel for the opposite party No.2 as well
as Mr. Aniruddha Sharma, learned A.G.A.
for the State opposite party and perused
the record.

2.

The
present
482
Cr.P.C.
application has been filed with a prayer to
quash the order dated 21.12.2021 passed
by Additional
District and Sessions
Judge/Special
Judge
(Prevention
of
Corruption Act), Court No.01, District
Gorakhpur, passed in Sessions Trial No.19
of 2015 (State Vs. Govind Yadav &
others) arising out of Case Crime No.463
of 2014, under Sections 147, 148, 149,
302, 386, 396 & 504 I.P.C., Police Station
Khorabar, District Gorakhpur, pending in
the
court
of
Additional
Sessions
Judge/Special
Judge
(Prevention
of
Corruption Act), Court No.01, District
Gorakhpur, with a further prayer to stay
the further proceedings of the aforesaid
case.

3. Brief facts of the case are that the
brother of first informant, namely, Raju
Yadav was allegedly shot by accused
persons, namely, Govind Yadav, Suresh
Yadav, Bablu Dubey on 08.08.2014. F.I.R.
was lodged on 08.08.2014 in Case Crime
No.463 of 2014, under Sections 147, 148,
149, 307, 302, 386, 396 and 504 I.P.C.,
Police
Station
Khorabar,
Distirct
Gorakhpur.

4. Charge sheet was filed against the
accused and cognizance was taken. D.G.C.
(Criminal),
Gorakhpur
moved
an
application under Section 319 Cr.P.C. to
summon the applicant as accused, which
was allowed on 18.07.2016 by District and
Sessions Judge, Gorakhpur. The applicant
filed an application under Section 319 (4)
(a) Cr.P.C. before the court below on
28.01.2021
which
was
rejected
on
12.02.2021.

5. Being aggrieved against the order
dated 12.01.2021, the applicant filed
Application U/S 482 No.6670 of 2021
before this Court and the same was
allowed on 16.03.2021. This Court
directed that opportunity to the accusedapplicant will be given for recording the
statement of examination-in-chief of
P.W.-1 in his presence and further it was
observed that full opportunity to cross
examine
the
witness
will
also
be
provided.

6. The examination-in-chief of P.W.-
1 was recorded afresh before the court
below and applicant was allowed to crossexamine P.W.-1 afresh. The applicant
preferred two applications bearing Paper
No.142 Kha and 143 Kha under Section
311 Cr.P.C. on 02.12.2021 to recall of
prosecution witness no.6, namely, Jitendra
Pal Singh - the Investigating Officer (I.O.)
and prosecution witness no.3 - Dr.
Awadhesh, who conducted the postmortem. The court below rejected the
aforesaid applications on 21.12.2021.
Being aggrieved against the said order, the
applicant has filed the present Application
U/S 482 Cr.P.C.
3 All. Bablu @ Vishnu Dhar Dubey Vs. State of U.P. & Anr.
305

7. The trial court has rejected the
application solely on the ground that the
trial has been concluded and statement
under Section 313 Cr.P.C. has been
recorded and the case is going on at final
stage. It is further observed that the
applicant has not stated what are the
questions to be asked in cross-examination
and thus rejected the application on
21.12.2021.

8. Mr. Anoop Trivedi, learned Senior
counsel
has
submitted
that
after
examination-in-chief the accused has right
under Section 319 (4) (a) Cr.P.C. to crossexamine the witnesses and the proceedings
of the trial as afresh. He has further
submitted that once examination-in-chief
has taken place, the trial is de novo in
respect of the accused applicant and he has
all rights open to recall the witnesses. The
question in the form of cross examination
cannot be disclosed because the accused
wants to confront the I.O. and Doctor in the
light of the statement made in examinationin-chief. The accused will not open as to
what are the questions to be put before the
P.W.-1. The trial is de novo, therefore, after
going through the statement of P.W.-1 he
feels in the interest of justice to confront
the I.O. and the Doctor. He has also
submitted that the fair trial is required
under Section 319 (4) (a) Cr.P.C. and it is
open for the accused-applicant to confront
the witnesses in the light of the statement
of examination made by P.W.-1. In case, he
is not allowed cross-examination with I.O.
and Doctor, it will be denial of fair trial as
enshrined Article 21 of the Constitution of
India.

9. Pet contra, Sri O.P. Singh, learned
Senior Advocate appearing on behalf of
opposite party no.2, has submitted that the
applicant has not disclosed the material as
to why he should be allowed to examine
I.O. and Doctor. He has further submitted
that statement under Section 313 Cr.P.C.
has been recorded and the case is going on
in the final hearing, it is not the occasion to
allow the application under Section 311
Cr.P.C. and the court below has rightly
rejected the applications. He has further
submitted that the cross-examination of
Doctor as well as I.O. had already taken
place
during
the
first
statement
of
examination-in-chief of P.W.-1.

10. Sri Anoop Trivedi, learned Senior
Advocate has relied several judgments:-

(i) Tahir & another Vs. State of
U.P. 2000 (1) JIC 588 (All)

(ii)
Shashikant
Singh
Vs.
Tarkeshwar Singh and others reported in
(2002) 5 SCC 738.

(iii) Nayeem Vs. State of U.P.
reported in 2002 (2) JIC 389 (All)

(iv) Jokhan Patel Vs. State of
U.P. reported in 2001 (2) JIC 459 (All)

(v) Dharmveer Singh & others
Vs. State of U.P. & others reported in
2011 (2) JIC 496 (All)

11. Relevant paragraph no.10 of the
judgment passed in the case of Shashikant
Singh (supra) is quoted below:-

"10. The intention of the provision
here is that where in the course of any
enquiry into, or trial of, an offence, it
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,
306 INDIAN LAW REPORTS ALLAHABAD SERIES
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 mandatory 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
cross-examination 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 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."

12. Sri O.P. Singh, learned Senior
Advocate has relied upon the judgment and
order passed in the case of Chand
Patrakar and another Vs. State of U.P.
and another decided on 06.12.2021 in
Criminal Revision No.3280 of 2021.
Relevant paragraph nos.28 and 30 of the
aforesaid judgment are quoted below:-

"28. This Court finds that the
aforesaid
grounds
so
taken
in
the
application under Section 311 of the
Cr.P.C. or not only vague but they do not
disclose any of the conditions which are
necessary for recalling the witness. Merely
on asking the application under Section
311 of the Cr.P.C. cannot be allowed as
there has to be sufficient reasons behind it.

30. The application so preferred
by the revisionist also does not give any
specific details as to what are the questions
which are to be raised in the crossexamination of PW-1 as only bald and
vague assertion has been made that certain
questions relating to the occurrence of the
incident were left to be asked. In the
absence of any pleadings set-forth by the
revisionist before the court below seeking
re-examination / recall of the witness as
well as canvasing of any argument to show
that the order under challenge is illegal,
perverse and palpably unjust, this Court
cannot interfere."

13. The judgments cited by Sri O.P.
Singh, learned counsel for opposite party
no.2 have got different footings because the
present case is arising out of de novo trial
under Section 319(4)(a) Cr.P.C. The trial in
respect of present accused-applicant is
fresh and he has right to confront the
Doctor and I.O. in pursuance of his
application. All of the aforesaid cases cited
by learned counsel for opposite party
indicate
that
application
for
crossexamination has been allowed under
Section 311 Cr.P.C. in pursuance of regular
trial, whereas, in the present case under
Section 319(1) Cr.P.C. de novo trial is
going on in respect of accused-applicant;
thus, once the trial is fresh, the accusedapplicant has legal right to confront any of
3 All. Bablu @ Vishnu Dhar Dubey Vs. State of U.P. & Anr.
307
the witness who has to be examined by
him.

14. The provision under Section 319
(1) Cr.P.C. is enabling provision by which
the trial court has power to summon the
accused on the basis of the evidence
relating to commission of offence. The
accused has been saved in a way that the
proceedings under Section 319 (4) (a)
Cr.P.C. right from the beginning is
mandatory to be commenced afresh and the
witnesses are to be reheard. It is thus clear
that the trial has to be a de novo trial
against the accused. The provision of de
novo trial is mandatory for the accused
summoned under Section 319 Cr.P.C. 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
rather they have to be examined afresh. 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 below has
concluded with the result that the newly
added person cannot be tried together with
the accused who was before the court
below when order under Section 319(1)
was passed. The earlier proceeding will
become ineffective and inoperative because
the accused brought under Section 319(1)
Cr.P.C. has to be given fair trial in view of
Section 319 (4) (a) Cr.P.C.

15. Since, the trial is de novo in
respect of applicant accused, he cannot be
denied the right to cross examine two
witnesses. This finding of the court below
is not sustainable in the eyes of law,
wherein, it has been observed that the
applicant has not disclosed the material for
cross-examination. The accused has right to
confront the witnesses. The question of
cross-examination is sanctum sanctorum
for accused which will not be opened by
him in the application. The accused will put
the question on the basis of examination-inchief of P.W.-1 at the time of crossexamination but the court below has taken
contrary view.

16. In view of the aforesaid factual
and legal aspect of the matter the order
dated 21.12.2021 passed by Additional
District and Sessions Judge/Special Judge
(Prevention of Corruption Act), Court
No.1, District Gorakhpur, in the aforesaid
case Sessions Trial No.19 of 2015 (State
Vs. Govind Yadav & others) arising out of
Case Crime No.463 of 2014, under
Sections 147, 148, 149, 302, 386, 396 &
504
I.P.C.,
Police
Station
Khorabar,
District Gorakhpur, is set aside and the
matter is remitted to the court below to take
fresh decision in pursuance of both
applications bearing Paper No.142 Kha and
143 Kha, under Section 311 Cr.P.C. in the
light of the observations made above,
within a period of three weeks from the
date of production of certified copy of this
order.

17. The application stands allowed.

18. It is further observed that in the
peculiar facts and circumstances of the
case, the trial is pending since more than
seven years, it is necessary to issue
direction to expedite the trial, therefore, I
direct the court below to complete the trial
within a period of eight months from today.
In case, day to day hearing is required, the
dates will be fixed accordingly and no
unnecessary adjournment will be granted to
either of the parties.
308 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2022)03ILR A308
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.02.2022

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Application U/S 482 No.5094 of 2021

Smt. Ramendri ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Awadh Sharma

Counsel for the Opposite Parties:
A.G.A., Sri Virendra Singh

The courts of law are meant for imparting
justice between the parties. One who comes to
the court must come with clean hands and no
material facts should be concealed. Honesty,
fairness, purity of mind should be of the highest
order to approach the courts failing which the
litigant should be shown the exit door at the
earliest point of time.

Application dismissed. (E-12)

List of Cases cited:-

1. Arunima Baruwa Vs U.O.I. (2007)6 SCC 120

2. Prestige Lights Ltd. Vs S.B.I. (2007)8 SCC
449

3. Udyami Evam Khadhi Gram Udyog Welfare
Sanstha & anr. Vs St. of U.P. & ors. (2008)1 SCC
560

4. K.D. Sharma Vs S.A.I.L. & ors. (2008)12 SCC
481

5. Dalip Singh Vs St. of U.P. & ors. (2010)2 SCC 114
(Delivered by Hon'ble Sanjay Kumar
Singh, J.)

1. Heard Shri Awadh Sharma, learned
counsel for the applicant, Shri Ram Pal
Singh, learned Additional Government
Advocate-I assisted by Shri Prashant
Kumar
Singh,
learned
Brief
Holder
representing the State of U.P. and Shri
Virendra Singh, learned counsel for the
first informant, opposite party No. 2.

2. By means of this application under
Section 482 Cr.P.C., the applicant has
prayed for quashing of entire proceedings
of Case No. 4692 of 2020 (State Vs.
Jitendra and others), arising out of Case
Crime No. 117 of 2020, under Section 498A, 304-B IPC and 3⁄4 of Dowry Prohibition
Act, police station Salempur, district
Bulandshahr, pending in the Court of Chief
Judicial Magistrate, Bulandshahr.

3. A preliminary objection has been
raised by the learned counsel for the
opposite party No. 2 by pointing out that
the applicant has not approached this Court
with clean hand and has filed successive
applications by concealing the material
facts and documents.

4. In short compass, the facts giving
rise to the present application are that a first
information report was lodged by opposite
party No. 2, Deepak Kumar at case crime
No. 117 of 2020, under Sections 498-A,
304-B and 3⁄4 of Dowry Prohibition Act,
police
station
Salempur,
district
Bulandshahr arraigning therein as many as
four accused namely Jitendra (husband),
Pawan (Jeth) Smt. Ramendri (mother-inlaw) and Satpal (father-in-law) of the
deceased
Anjali
inter
alia
with
the
allegations that marriage of his sister-Anjali
was solemnized with Jitendra on 16.2.2020
in which about 10-12 lakhs were spent.
Since, the in-laws of his sister were not
satisfied with the dowry, they used to