# Brijeash Saurabh Mishra @ Brijesh Mishra v. State of U.P. & Anr

- **Citation:** (2023) 1 ILRA 1303
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-16
- **Case number:** Application U/S 482 No. 216 of 2023
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brijeash-saurabh-mishra-brijesh-mishra-v-state-of-u-p-anr-49588
- **Pages:** 3

## Headnote

Criminal Law - Code of Criminal Procedure
- Section 273-The impugned order closed the
opportunity for the applicant to cross-examine
PW-11, Uma Shankar Tripathi, in a case under
Section 2/3 U.P. Gangster Act - Violation of
Section 273 Cr.P.C - Trial court's exercise
improper.
Application allowed. (E-9)

## Text

1 All. Brijeash Saurabh Mishra @ Brijesh Mishra Vs. State of U.P. & Anr.
1303
Consequently, concerned Magistrate has
not acted judiciously while issuing the
impugned notice dated 20.12.2022. The
notice under Section 110G Cr.P.C. has been
issued only on the basis of one case the
impugned notice does not contain the
substance of allegation which has been
made against the applicant and has been
issued in a routine manner on a printed
format.

9. In view of above, the impugned
notice dated 20.12.2022, issued by Sub
Divisional
Magistrate,
Mahrajganj,
Raibareli,
cannot
be
sustained.
Accordingly, the same is liable to be
quashed.

10. Consequently, present application
succeeds and is liable to be allowed. It is
accordingly allowed. Impugned notice
dated
20.12.2022
is
quashed.
Sub
Divisional
Magistrate,
Mahrajganj,
Raibareli, shall issue a fresh notice after
undertaking requisite exercise in the light
of observations made herein above and in
accordance with law, if deem fit under the
circumstances of the case.
----------
(2023) 1 ILRA 1303
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.01.2023

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Application U/S 482 No. 216 of 2023

Brijeash Saurabh Mishra @ Brijesh Mishra
 ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Manoj Kumar Misra
Counsel for the Opposite Parties:
G.A.
Criminal Law - Code of Criminal Procedure
- Section 273-The impugned order closed the
opportunity for the applicant to cross-examine
PW-11, Uma Shankar Tripathi, in a case under
Section 2/3 U.P. Gangster Act - Violation of
Section 273 Cr.P.C - Trial court's exercise
improper.
Application allowed. (E-9)
(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Manoj Kumar Misra,
learned counsel for the applicant and Sri
Rajesh Kumar Singh, learned AGA for the
State.

2. By means of this application filed
under Section 482 Cr.P.C., the applicant has
prayed following main reliefs:-

"For
the
facts,
reason
and
circumstances as stated in accompanying
affidavit it is most respectfully prayed
before this Hon'ble Court that it may kindly
be pleased to set aside the order dated
17.11.2022
passed
in
Session
Trail
no.70/2015 State Vs. Brijesh Saurabh
Mishra and others, arising out Crime
No.237/2013, Under Section 2/3 U.P.
Gangester Act concerning police station
Antu District Pratapgarh pending in the
Court of Additional Session Judge Court
No.05, Pratapgarh by means of which he
has closed the opportunity of cross
examination for the applicant and also set
aside the order dated 25.11.2022 passed by
Additional Sessions Judge, court no.05
Pratapgarh in aforesaid case and direct
Leaned Court below to recall the witness
and allow the applicant to cross examine
him in the interest of justice.
1304 INDIAN LAW REPORTS ALLAHABAD SERIES

It is further prayed before this
Hon'ble Court that it may kindly be pleased
to stay further proceeding in aforesaid
case, during the pendency of this case in
interest of justice."

3. The precise contention of the
learned counsel for the applicant is that the
learned trial court vide order dated
17.11.2022 recorded the chief statement of
one PW-11, Uma Shankar Tripathi. On that,
particularly at that point of time, counsel
for the applicant was busy in another court,
therefore, one application was filed on his
behalf to adjourn the case as his counsel
was not able to cross-examine PW-11 Uma
Shankar Tripathi. Learned trial court
rejected the said application for the reason
that the counsel for the present applicant
had not indicated about the court where he
was busy.

4. Since no adjournment of any kind
whatsoever was sought earlier to crossexamine
PW-11,
rather
the
chiefexamination of the said witness was
recorded on 17.11.2022, therefore, at least,
one short time should be given to the
counsel for the applicant in terms of
Section 273 Cr.P.C., which clearly provided
that
except
as
otherwise
expressly
provided, all evidence taken in the court of
the trial or other proceedings shall be taken
in the presence of the accused or when his
personal attendance is dispensed with, in
the presence of his pleader. On the strength
of aforesaid legal proposition, the present
applicant has filed an application dated
25.11.2022 (Annexure No.5) under Section
311 Cr.P.C. to recall the order dated
17.11.2022 and to provide one opportunity
to cross-examine PW-11. By means of
order dated 25.11.2022 (Annexure No.6),
learned trial court rejected the said
application indicating therein that the cases
relating to MP/MLA should be disposed of
with expedition in terms of directions being
issued by the Hon'ble High Court and said
matter was old, therefore, adjournment was
not possible. Learned trial court has also
indicated that the counsel had not indicated
in his application about the court where he
was busy. Therefore, the ground of business
of any Advocate on particular date may not
be a good ground to adjourn the case.

5. Sri Misra has sated that had this case
been in a nature that frequent adjournment
had been sought from the side of the present
applicant, the observation of the learned trial
court would have been appropriated but in the
present case, admittedly, on the date when the
chief-examination of PW-11 was recorded,
the opportunity of cross-examination of such
witness has been closed by the learned trial
court. The aforesaid exercise is violative of
Section 273 Cr.P.C. Therefore, he has
requested that quashing the orders dated
17.11.2022 and 25.11.2022, the present
applicant may be afforded an opportunity to
cross-examine PW-11.

6. Learned AGA has opposed the
aforesaid request and has submitted that PW11 has only proved chik FIR and if he has not
been cross-examined by the applicant, the
applicant might have not suffered any
irreparable loss and that may not be
considered as miscarriage of justice to the
present applicant, therefore, the orders dated
17.11.2022 and 25.11.2022 passed by the
learned trial court need no interference.

7. Heard learned counsel for the parties
and perused the material available on record.

8. This is trite law as well as it has got
statutory prescription under Section 273
Cr.P.C. that all evidences taken in the court
of trial or other proceedings shall be taken
1 All. Sumit Agarwal & Ors. Vs. State of U.P. & Anr.
1305
in the presence of the accused or if his
personal attendance is dispensed with, in
the presence of his pleader. That statutory
prescription may not be avoided. Besides,
this is not a case where the frequent
adjournments have been sought from the
side of the present applicant, rather it was
the first application for adjournment filed
on 17.11.2022 when the chief-examination
of PW-11 has been recorded and on the
same date, such opportunity has been
closed
without
giving
any
short
adjournment, therefore, the same may not
be considered as a proper exercise being
carried out by the learned trial court.
Learned counsel might have been busy in
another court at particular point of time and
if such application was filed before the
learned court below, that application should
have been considered properly in the light
of statutory prescription of Section 273
Cr.P.C. vis-a-vis in the light of the fact that
the cross-examination of a witness is a right
of the other side. Such right may be denied
only in exceptional circumstances or in
such circumstances where the order sheet
reveals that the other side/ party is habitual
in seeking adjournments for one reason or
another.

9. Therefore, in view of the facts and
circumstances, considered above, I am of
the considered opinion that the impugned
orders dated 17.11.2022 and 25.11.2022
have not been passed properly, therefore,
both the orders are set aside.

10. Learned trial court is directed to
provide one opportunity to the present
applicant/ his counsel to cross-examine
PW-11 fixing a single date, may be a short
date, and if on that date, said prosecution
witness could not be examined for any
lapse on the part of the present applicant,
any appropriate orders may be passed
indicating the reason. Since the trial in
question
is
of
2015,
therefore,
the
precaution to that effect, which has been
taken by the learned trial court, is
appreciated, but in the light of such
precaution, a single opportunity to crossexamine PW-11 may not be denied.

11. Accordingly, the application is
allowed.
----------
(2023) 1 ILRA 1305
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.11.2022

BEFORE

THE HON'BLE DR. GAUTAM CHOWDHARY, J.

Application u/s 482 No. 27577 of 2022

Sumit Agarwal & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Sri Sheshadri Trivedi, Sri Ashish Dutt Dubey, Sri
Satish Trivedi (Sr. Advocate), Sri Gopal S.
Chaturvedi (Sr. Advocate)

Counsel for the Opp. Parties:
G.A., Sri Deepak Dubey, Sri Rajesh Pachauri, Sri
Shiv Bahadur Singh
Criminal Law - Indian Penal Code, 1860 -
Sections 498A, 304-B, 323, 506 & 313 -
Section 3/4 of Dowry Prohibition Act
,1961 - SC directs CBI to investigate and
Asides his bails - The C.B.I. submitted a closure
report
asserting
the
allegations
were
unsubstantiated - Magistrate had already taken
cognizance before - Applicant moved to court
U/S 482 Cr.P.C - Asked for interim bail by
applicants counsel as per findings of CBI -
Oppose, as incident and ,report is of 17 months
later - court acknowledged that both reports
must be considered cumulatively to determine if
grounds exist to presume guilt - court declined
to quash summoning order- applicants given the