# Bhagwan Das v. State of U.P. & Anr

- **Citation:** (2015) 2 ILRA 536
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-04-03
- **Case number:** Application U/S 482 No. 7359 of 2015
- **Bench:** Manoj Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhagwan-das-v-state-of-u-p-anr-43155
- **Pages:** 4

## Headnote

Cr.P.C.-Section
482-against
order
rejecting application to recall of witnessfor cross examination-held-suffers from
legal
infirmity-set-a-side-as
right
to
cross examine the prosecution witness-a
valuable right of accused-can not be
casually forfeited.
Held: Para-7
Having considered the submissions of
the learned counsel for the parties, this
Court is of the view that right to crossexamine the prosecution witnesses is a
very valuable right of an accused and
should not mechanically or casually be
forfeited unless there are compelling
reasons justifying the same. Where the
accused is languishing in jail and is not
being represented by a counsel or
though a counsel has put in appearance
but fails to appear to provide any
assistance to the accused, it is the duty
of the Court to appoint an amicus curiae
to represent the accused unless the
accused in clear and unambiguous words
refuses to take his service and chooses
to defend himself personally.

## Text

536
 INDIAN LAW REPORTS ALLAHABAD SERIES
Dehat and others3 this court had held that
the benefit under Section 4 F is liable to
be given only to those members of the
scheduled caste whose possession is
entered in the revenue records prior to the
cut off date or eviction proceedings are
pending against them since before the
said date. This is not the position in
the case at hard. The land in question is
admittedly recorded as Naveen Parti and
therefore also the petitioners are not
entitled to the benefit of sub section 4 F.
19. The Board of Revenue in the
impugned order has recorded that the
plaintiff petitioner had title only to the
trees and the entries of title over the trees
will not give any substantive right to the
petitioner over the land. It was further
observed, that no documentary proof has
been furnished by the plaintiff petitioner
and only the trees are recorded in the
Khasra 1401 Fasli. A specific finding has
also been recorded that the petitioners'
possession is not recorded in any
document available on record.
20. In view of the above discussion,
I see no illegality in the impugned order.
It is inconsonance with the view taken by
this court in the case of Sanjay Kumar and
specially in Brahmi (supra), which in turn
is based on the judgment of the Apex
Court in the case of Kalawatibai Vs
Soiryabai and others.
21. The writ petition therefore lacks
substance and is accordingly dismissed.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.04.2015
BEFORE
THE HON'BLE MANOJ MISRA, J.
Application U/S 482 No. 7359 of 2015
Bhagwan Das
 ...Applicant
Versus
State of U.P. & Anr.
...Opp. Parties
Counsel for the Applicant:
Bharat Singh
Counsel for the Opp.Parties:
Govt. Advocate
Cr.P.C.-Section
482-against
order
rejecting application to recall of witnessfor cross examination-held-suffers from
legal
infirmity-set-a-side-as
right
to
cross examine the prosecution witness-a
valuable right of accused-can not be
casually forfeited.
Held: Para-7
Having considered the submissions of
the learned counsel for the parties, this
Court is of the view that right to crossexamine the prosecution witnesses is a
very valuable right of an accused and
should not mechanically or casually be
forfeited unless there are compelling
reasons justifying the same. Where the
accused is languishing in jail and is not
being represented by a counsel or
though a counsel has put in appearance
but fails to appear to provide any
assistance to the accused, it is the duty
of the Court to appoint an amicus curiae
to represent the accused unless the
accused in clear and unambiguous words
refuses to take his service and chooses
to defend himself personally.
(Delivered by Hon'ble Manoj Misra, J.)
1.
Heard learned counsel for the
applicant; the learned A.G.A. for the State
and perused the record.
2. The instant application has been
filed by an accused facing trial for
offences punishable under sections 363,
366 and 376 IPC for quashing of an order
2 All]
 Bhagwan Das Vs. State of U.P. & Anr
537
dated
04.02.2015
passed
by
the
Additional Sessions Judge (Fast Track
Court), Budaun in Session Trial No. 523
of 2012 (State v. Bhagwan Das) by which
the application of the applicant for recall
of the witnesses (P.W.1 to P.W.6) for
cross-examination, has been rejected.
3. The case of the applicant is that in
connection with the aforesaid offences he
was
arrested
and
bailed
out,
but,
thereafter, he was again arrested in
another case and had to remain in jail
from 25.09.2012 to 15.11.2014 in which
period the trial proceeded and prosecution
witnesses i.e. PW1 to PW6 were
examined whereas no counsel appeared
on his behalf to cross examine them, as a
result, the prosecution evidence was
closed. It his case that though, earlier,
counsels were engaged by him but no one
appeared on his behalf to cross examine
the witnesses because the applicant
having been languishing in jail was
unable to pay their fees and there was no
one available to do pairvi on his behalf as
his father had already died. It was thus
prayed that as the applicant has now been
bailed out and is in a position to engage
counsel, the witnesses be recalled and the
applicant be allowed to cross examine
them.
4. The court below rejected the
application by observing that there were
counsels who had filed their power
(vakalatnama) on behalf of the applicant
but they did not appear to cross examine;
and as no prayer was made by the
applicant to appoint an amicus curiae, it
cannot be said that sufficient opportunity
was not given to him to cross examine the
witnesses and, as such, the plea to recall
the witnesses is only to delay the
conclusion of the trial, therefore was
worthy of rejection. The trial court,
however, neither recorded any finding
that at the time when the trial proceeded
and witnesses were examined, the accused
was not languishing in jail nor it observed
that services of an amicus curiae was
offered by the Court to the applicant
which he consciously refused to avail.
5. Challenging the order passed by
the court below, the learned counsel for
the applicant submitted that every accused
has a right to be represented by a lawyer
at the commencement of the trial and
during the course of the trial and it is the
constitutional duty of the Court to provide
him with a lawyer. It has been submitted
that as the counsel engaged by the
applicant had not appeared to conduct
cross-examination and the applicant had
not waived his right to be represented by a
lawyer, the trial court was under an
obligation to appoint an amicus curiae to
represent the applicant to cross examine
the witnesses. It has been submitted that
mere not asking for being represented by
a lawyer would not absolve the Court
from its constitutional duty of appointing
an amicus curiae to represent the accused
unless the accused consciously refuses to
be represented and takes upon himself the
mantle of a cross examiner. In support of
his submission, the learned counsel for
the applicant has cited before the Court a
landmark judgment of the Apex Court in
the
case
of
Mohammed
Ajmal
Mohammad Amir Kasab alias Abu
Mujahid v. State of Maharastra, reported
in 2012 (9) SCC 1 where, in paragraphs
474 and 477 of the report, the Apex Court
had observed as follows:-
"474.
We,
therefore,
have
no
hesitation in holding that the right to
access to legal aid, to consult and to be
538
 INDIAN LAW REPORTS ALLAHABAD SERIES
defended by a legal practitioner, arises when a
person arrested in connection with a
cognizable offence is first produced before a
magistrate. We, accordingly, hold that it is the
duty and obligation of the magistrate before
whom a person accused of committing a
cognizable offence is first produced to make
him fully aware that it is his right to consult and
be defended by a legal practitioner and, in case
he has no means to engage a lawyer of his
choice, that one would be provided to him from
legal aid at the expense of the State. The right
flows from Articles 21 and 22(1) of the
Constitution and needs to be strictly enforced.
We, accordingly, direct all the magistrates in
the country to faithfully discharge the aforesaid
duty and obligation and further make it clear
that any failure to fully discharge the duty
would amount to dereliction in duty and would
make the concerned magistrate liable to
departmental proceedings.
477. Every accused unrepresented by
a lawyer has to be provided a lawyer at
the commencement of the trial, engaged
to represent him during the entire course
of the trial. Even if the accused does not
ask for a lawyer or he remains silent, it is
the Constitutional duty of the court to
provide him with a lawyer before
commencing the trial. Unless the accused
voluntarily makes an informed decision
and tells the court, in clear and
unambiguous words, that he does not
want the assistance of any lawyer and
would rather defend himself personally,
the obligation to provide him with a
lawyer at the commencement of the trial
is absolute, and failure to do so would
vitiate
the
trial
and
the
resultant
conviction and sentence, if any, given to
the accused (see Suk Das v. UT of
Arunachal Pradesh 97)."
6. The learned AGA though sought
to support the lower court order but could
not point out any binding legal precedent
holding to the contrary than what has
been cited by the learned counsel for the
applicant.
7.

Having
considered
the
submissions of the learned counsel for the
parties, this Court is of the view that right
to
cross-examine
the
prosecution
witnesses is a very valuable right of an
accused and should not mechanically or
casually be forfeited unless there are
compelling reasons justifying the same.
Where the accused is languishing in jail
and is not being represented by a counsel
or though a counsel has put in appearance
but fails to appear to provide any
assistance to the accused, it is the duty of
the Court to appoint an amicus curiae to
represent the accused unless the accused
in clear and unambiguous words refuses
to take his service and chooses to defend
himself personally.
8. In the instant case, admittedly all
the prosecution witnesses have gone
without cross examination. The Court also
finds that there is nothing in the order
impugned to suggest that the counsel
engaged by the applicant to appear on his
behalf was present at the time of examination
in chief but had consciously refused to cross
examine the witness. There is also nothing in
the order impugned to suggest that services
of an amicus curiae was offered to the
applicant by the Court which he consciously
refused to avail. It is also not in dispute that
the applicant was languishing in jail at the
time when the witnesses were examined.
Under the circumstances, this court is of the
view that the order rejecting the application
for recall of the prosecution witnesses suffers
from legal infirmity and is liable to be set
aside. The impugned order dated 04.02.2015
is set aside. The matter is remitted back to
2 All] Narsingh Tiwari Vs. State of U.P. & Ors
539
the court concerned to pass a fresh order on
the application of the applicant for recall of
the
witnesses
keeping
in
mind
the
observations made herein above.
9. The application stands allowed to
the extent indicated above.
10. Office is directed to send a copy
of this order to the court concerned,
within two weeks, for compliance.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.04.2015
BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE ARVIND KUMAR MISHRA-I, J.
Criminal Misc. Writ Petition No. 7438 of
2015
Narsingh Tiwari
 ..Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
A.M. Tripathi
Counsel for the Respondents:
Govt. Advocate
Constitution of India,Art.-226-Quashing FIRby informant-allegations of kidnapping of
minor girl-held-subject to recourse final
report by investigation officer-under Section
157, 158 or 173 (2) Cr.P.C.-statement of
minor girl be recorded under Section 164
Cr.P.C.-with liberty to court below to pass
appropriate order-petition disposed of.
Held: Para-8
In
the
aforesaid
circumstances,
the
petitioner appears to have moved an
application
before
the
Senior
Superintendent of Police. Learned A.G.A.
therefore is right in his submissions that it
is now for the Investigating Officer to
submit his report keeping in view the
provisions of Section 157 read with
Section 158 Cr.P.C. coupled with the report
which might be submitted finally under
Section 173(2) Cr.P.C. The contention,
therefore, is that if the closure of the case
is warranted in the background aforesaid,
the same has to be attempted through the
aforesaid
agency
and
the
procedure
prescribed in law.
(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)
1. Heard learned counsel for the
petitioner and Sri A.K. Sand, learned
A.G.A. for the respondents no.1, 2 and 3.
2. This is a peculiar case where the
father of the victim, who is the
complainant, has come forward with a
prayer to quash the FIR and an alternative
prayer for a mandamus to the respondent
no.3 not to interrogate the petitioner or
subject the petitioner's daughter to any
further investigation that may amount to
harassment. In effect, the prayer is that
the
petitioner
no
longer
wants
to
prosecute the accused at his instance.
3. The FIR was lodged where
allegations were made of kidnapping of
the girl who, according to the version in
the FIR, had not attained the age of
majority of 18 years and was also
mentally of a lower level.
4. The accused are alleged to have
enticed her away, hence the FIR which is
more than almost five months old.
5.
Learned counsel for the petitioner
submits that in the background that the girl has
already been recovered and she is in the
custody of the petitioner, the petitioner does not
want to take any further action in the matter
keeping in view the future of his daughter.