# Billar v. State of U.P. and another

- **Citation:** (2005) 4 ILRA 1109
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-11-25
- **Case number:** Criminal Misc. Application No. 17043 of 2005
- **Bench:** Mukteshwar Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/billar-v-state-of-u-p-and-another-40547
- **Pages:** 2

## Text

4 All] Billar V. State of U.P. and another
1109

16.

In
the
totality
of
the
circumstances as borne out from record of
the petition, the order dated 16.4.2005,
passed
by
the
District
Magistrate,
Hamirpur cannot be legally sustained and
is hereby quashed. However, this order
shall not prejudice the recovery of the loss
caused to the Gram Panchayat on the
basis of the assessment made during the
enquiry proceedings in accordance with
rule 256 of the Panchayat Raj Rules
against the petitioner.

17. In view of the aforesaid writ
petition is allowed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.11.2005

BEFORE
THE HON'BLE MUKTESHWAR PRASAD, J.

Criminal Misc. Application No. 17043 of
2005

Billar

...Applicant
Versus
State of U.P. & another ..Opposite Parties

Counsel for the Applicant:
Sri K.S. Tiwari
Sri Amit Kumar Dixit

Counsel for the Opposite Parties:
A.G.A.

Code of Criminal Procedure-Section-311
Summoning Order-session judge during
course
of
trial
summoned
the
Investigation
officer-by
invoking
inherent power to reach to the truthheld-none can prevent the court from
exercising such power-application u/s
482 on the part of accused-liable to be
dismissed.

Held: Para 7
Moreover, second part of Section 311
Cr.P.C. empowers the court to summon
or recall or re-examine any person/
witness if his evidence appears to be
essential for just decision of the case.
Such a power is inherent in a criminal
court for the reason that in the criminal
court every effort is made to reach to the
truth. It appears that learned Sessions
Judge
felt
necessity
to
recall
the
Investigating Officer for re-examination.
In my opinion, none of the parties can
agitate this matter and they cannot
prevent the court from exercising its
power
under
Section
311
Cr.P.C.
Ultimately, it is the responsibility of the
courts to do justice and every efforts
should be made by the court to separate
this chaff from grain.
Case law discussed:
2000 (40) ACC-311

(Delivered by Hon'ble Mukteshwar Prasad, J.)

1. Heard learned counsel for the
applicant, learned A.G.A. and perused the
record including orders of the learned
Sessions Judge, Banda dated 26.7.2005
and 30.9.2005.

2. It is submitted that learned
Sessions Judge vide his order dated
26.7.2005
summoned
P.W.
6
Siraj
Ahmad, Investigating Officer of the case
and Constable, who had made entry in the
G.D. on 6.8.2003. This order was passed
by the Sessions Judge in exercise of his
powers under Section 311 Cr.P.C. which
provides that any criminal court may at
any stage of any inquiry, trial or other
proceedings under this Code, summon
any person as a witness, or examine any
person
in
attendance,
though
not
summoned as a witness, or recall and reexamine any person already examined;
and the court shall summon and examine
or recall and re-examine any such person
1110 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
if his evidence appears to it to be essential
to the just decision of the case.

3. An objection was filed on behalf
of the accused that in the order-dated
26.7.2005 the court has not clarified that
on what fact the reexamination of the
Investigating Officer is necessary.

4. After having heard learned
counsel for the State and learned counsel
for defence also, learned Judge rejected
the application of the accused and as such,
a prayer has been made for quashing the
order-dated 30.9.2005.

5. The main contention of learned
counsel for the applicant is that the court
below was required to record reasons in
its order for recalling the Investigating
Officer for further cross-examination. He
has no grievance against the order for
summoning the Constable.

6. Reliance has been placed on a
Division Bench decision of this Court in
Tahir and others vs. State of U.P.
reported in 2000 (40) A.C.C. 311.

7. I have considered the submissions
made by learned counsel for the parties
and perused the decision relied upon by
learned counsel for the applicant. In my
opinion, the aforesaid decision of the
Division Bench does not help the
applicant. The simple reason is that the
impugned order-dated 26.7.2005 was
passed by the court suo motu and not on
the application of the prosecution or
defence. Moreover, second part of Section
311 Cr.P.C. empowers the court to
summon or recall or re-examine any
person/ witness if his evidence appears to
be essential for just decision of the case.
Such a power is inherent in a criminal
court for the reason that in the criminal
court every effort is made to reach to the
truth. It appears that learned Sessions
Judge
felt
necessity
to
recall
the
Investigating Officer for re-examination.
In my opinion, none of the parties can
agitate this matter and they cannot prevent
the court from exercising its power under
Section 311 Cr.P.C. Ultimately, it is the
responsibility of the courts to do justice
and every efforts should be made by the
court to separate this chaff from grain.

8. The criminal courts are also
required to ensure that no innocent person
is convicted for any offence, which was
actually not committed by him. In this
view of the matter and in view of the clear
provision of Sections 311 Cr.P.C. I am of
the opinion that learned Sessions Judge
committed no illegality in recalling the
Investigating Officer. Consequently, I
find that this application lacks of merit
and is liable to be dismissed.

9. The application is accordingly
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.12.2005

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No. 75265 of 2005

Chandra Prakash Gupta
...Petitioner
Versus
Nideshak (Kshetriya Gramin Bank), and
others

 ...Respondents

Counsel for the Petitioner:
Sri Umesh Chandra Mishra
Sri Sanjeev Kumar Gupta