# Chandrajit Singh @ Chehku & Ors v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2023) 8 ILRA 659
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-24
- **Case number:** Application u/s 482 No. 18731 of 2023
- **Bench:** Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandrajit-singh-chehku-ors-v-state-of-u-p-anr-opp-parties-50696
- **Pages:** 6

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power , Section 311 - Power to Summon
material witness, or examine person
present , Indian Penal Code, 1860 -
Section 147, 148, 149, 302, 395, 396, 504,
Indian Evidence Act, 1872 - Section 145 -
Cross-examination
as
to
previous
statements in writing - a witness cannot
be tendered for cross-examination alone -
If he was not examined in chief, he cannot
be subjected to cross-examination.(Para14)
660 INDIAN LAW REPORTS ALLAHABAD SERIES
Case involves charges against accused under s
302 and 395 I.P.C. - later converted and framed
under s 396 I.P.C. - trial court summoned P.W.1
and P.W.3 for cross-examination - informant
filed Criminal Revision - vacated - defense
submitted application for summoning P.W.2,
P.W.4 and Investigating Officer of C.B.C.I.D. -
delay due to informant's filing of Criminal
Revision - later passed by coordinate bench -
staying further trial - to contradict witnesses u/s
145 evidence Act - re-examination of P.W.2 ,
P.W.4 and Investigating Officer of C.B.C.I.D.
essential - court's failure to summon witnesses -
caused great injustice to accused.(Para - 3,4,13)

HELD:-Charges framed under u/s 302 and 395
I.P.C. and modified under u/s 396 I.P.C. relate
to
murder,
so
summoning
P.W.2,
who
conducted
postmortem
,is
unnecessary.
Applicants have not provided reasons for crossexamination after the charge modification, so
summoning not necessary. No ground to
summon P.W.2 and Investigating Officer of
C.B.C.I.D.. Applicants/defence shall be granted
opportunity to examine P.W.4 on payment of
Rs.4,000/- as costs. Prayer for summoning of
P.W.2 and Investigating Officer of C.B.C.I.D.
rejected. (Para-13,15,18)

Application u/s 482 Cr.P.C. partly allowed.
(E-7)

List of Cases cited:-

## Text

8 All. Chandrajit Singh @ Chehku & Ors. Vs. State of U.P. & Anr.
659
Thapa(1996) 4 SCC 659referred to the
meaning of the word "presume" while
relying uponBlack's Law Dictionary.It was
defined to mean "to believe or accept upon
probable evidence"; "to take as proved until
evidence to the contrary is forthcoming". In
other words, the truth of the matter has to
come out when the prosecution evidence is
led, the witnesses are cross-examined by the
defence, the incriminating material and
evidence is put to the accused in terms of
Section 313 of the Code and then the accused
is provided an opportunity to lead defence, if
any. It is only upon completion of such steps
that the trial concludes with the court
forming its final opinion and delivering its
judgment. Merely because there was a civil
transaction between the parties would not by
itself alter the status of the allegations
constituting the criminal offence.

25. Thus the law regarding the
approach to be adopted by the court while
considering an application fordischargeof
the accused persons under Section 227 and
approach while framing charges under
Section 228 of the Code, is that while
considering an application fordischargeof
the accused under Section 227 of the Code,
the Court has to form a definite opinion,
upon consideration of the record of the case
and the documents submitted therewith,
that there is not sufficient ground for
proceeding against the accused. However,
while framing charges, the Court is not
required to form a definite opinion that the
accused is guilty of committing an offence.
The truth of the matter will come out when
evidence is led during the trial. Once the
facts and ingredients of the Section exist,
the court would presume that there is
ground to proceed against the accused and
frame the charge accordingly and the Court
would
not
doubt
the
case
of
the
prosecution.

26. Having considered the facts of the
case in light of the law laid down by the
Hon'ble Supreme Court in Amit Kapoor
(Supra) I am of the considered view that
upon consideration of the record of the
case,
there
is
sufficient
ground
for
proceeding against the applicant. The truth
of the matter will come out when evidence
is led during the trial.

27. The application under Section 482
Cr.P.C. lacks merits and the same is hereby
dismissed.
----------
(2023) 8 ILRA 659
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.07.2023

BEFORE

THE HON'BLE SURENDRA SINGH-I, J.

Application u/s 482 No. 18731 of 2023

Chandrajit Singh @ Chehku & Ors.
 ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Sri Purushottam Dixit, Sri Jitendra Kumar, Sri
Keshav Hari Dixit

Counsel for the Opp. Parties:
G.A., Sri Sushil Kumar Dubey

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power , Section 311 - Power to Summon
material witness, or examine person
present , Indian Penal Code, 1860 -
Section 147, 148, 149, 302, 395, 396, 504,
Indian Evidence Act, 1872 - Section 145 -
Cross-examination
as
to
previous
statements in writing - a witness cannot
be tendered for cross-examination alone -
If he was not examined in chief, he cannot
be subjected to cross-examination.(Para14)
660 INDIAN LAW REPORTS ALLAHABAD SERIES
Case involves charges against accused under s
302 and 395 I.P.C. - later converted and framed
under s 396 I.P.C. - trial court summoned P.W.1
and P.W.3 for cross-examination - informant
filed Criminal Revision - vacated - defense
submitted application for summoning P.W.2,
P.W.4 and Investigating Officer of C.B.C.I.D. -
delay due to informant's filing of Criminal
Revision - later passed by coordinate bench -
staying further trial - to contradict witnesses u/s
145 evidence Act - re-examination of P.W.2 ,
P.W.4 and Investigating Officer of C.B.C.I.D.
essential - court's failure to summon witnesses -
caused great injustice to accused.(Para - 3,4,13)

HELD:-Charges framed under u/s 302 and 395
I.P.C. and modified under u/s 396 I.P.C. relate
to
murder,
so
summoning
P.W.2,
who
conducted
postmortem
,is
unnecessary.
Applicants have not provided reasons for crossexamination after the charge modification, so
summoning not necessary. No ground to
summon P.W.2 and Investigating Officer of
C.B.C.I.D.. Applicants/defence shall be granted
opportunity to examine P.W.4 on payment of
Rs.4,000/- as costs. Prayer for summoning of
P.W.2 and Investigating Officer of C.B.C.I.D.
rejected. (Para-13,15,18)

Application u/s 482 Cr.P.C. partly allowed.
(E-7)

List of Cases cited:-

1. Manju Devi Vs St. of Raj. & ors., AIR 2019 SC
1976

2. Natasha Singh Vs C.B.I. (St.), 2013 Lawsuit
(SC) 404

3. Swapan Kumar Chatterjee Vs C.B.I., (2019) 0
Supreme (SCC) 319

4. Rajaram Prasad Yadav Vs St. of Bihar & anr.,
(2013) 0 Supreme (SC) 589

5. Bhim Singh Vs St. of U.P., 2022 (3) ADJ 87

6. Raghunandan Vs St. of U.P., (1974) 4 SCC
186

7. Kamal Oil & Allied Industries (P) Ltd. Vs Delhi
Administration, 1982 Cr.L.J. 2046
8. Asian Resurfacing of Road Agency Pvt. Ltd.
& anr. Vs C.B.I. , (2018) 16 SCC 299

9. Sukhwant Singh Vs St. of Punj. , (1995) 3
SCC 367

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

Heard Sri Purushottam Dixit, learned
counsel for the applicants, Sri Sushil
Kumar Dubey, learned counsel for the
opposite party no. 2, Sri Prashant Saxena,
learned A.G.A. for the State and perused
the record.

2. The present 482 Cr.P.C. application
has been filed to set-aside the order dated
06.05.2023
(State
Vs.
Chandrajit
@
Chahku and others) and all proceedings
arising out of Case Crime No. 94 of 1994
u/s 147, 148, 149, 302, 395, 396, 504
I.P.C., Police Station- Basrehar, District-
Etawah as a Special Case No. 265 of 2008,
pending in the court of learned Special
Judge
(Dacoity
Affected
Areas
Act)/Additional Sessions Judge, Court No.
5, Etawah and witnesses V.P. Singh
(Retired) S.I., R/o Phoolbagh Colony,
Police Station- Nauchandi, Shahar and
District- Meerut (Investigating Officer),
Ghanshyam
Ahirwar,
Inspector
(Investigating Officer C.B.C.I.D.) and Dr.
S.K. Agarwal, Medical Officer, Witness
(Postmortem), may be recalled for their
cross-examination.

3. It has been submitted by the
learned counsel for the applicant that vide
impugned order dated 06.05.2023, the trial
court rejected the application 354 Ka dated
26.04.2023 u/s 311 Cr.P.C. filed by the
applicants/accused. The applicants/accused
have filed their application u/s 311 Cr.P.C.
with the averment that in the beginning,
charge was framed against the accused u/s
302 & 395 I.P.C. and prosecution witnesses
8 All. Chandrajit Singh @ Chehku & Ors. Vs. State of U.P. & Anr.
661
were examined after framing of the charge
in aforesaid sections. The second charge
was framed on 13.10.2010 u/s 396 I.P.C.
After framing of the altered charge u/s 396
I.P.C., on 14.02.2023, P.W.1 Rajesh and
P.W.3 Vijay Kumar were cross-examined.

4. It has been next submitted by the
learned counsel for the applicant that after
alteration of charge, the informant had filed
Criminal Revision No. 4882 of 2010,
Rajesh Kumar Singh Vs. State of U.P. &
Others. Vide order dated 18.11.2010, the
trial of the said criminal case was stayed by
the Hon'ble High Court. The stay order was
vacated in the year 2023. Thereafter, P.W.1
Rajesh Kumar and P.W.2 Vijay Kumar
were examined. Thus, there was no act on
the part of the accused in delaying the trial
of the case. Thus, the defence did not
contribute for the delay caused in the trial
of the case. It has also been submitted that
to contradict these witnesses u/s 145 of the
Indian Evidence Act, the re-examination of
P.W.2 Dr. S.K. Agarwal, P.W.4 S.I. V.P.
Singh
and
Investigating
Officer
of
C.B.C.I.D.,
Ghanshyam
Ahirwar
is
essential. By not summoning the aforesaid
witnesses, the trial court has caused great
injustice to the accused and thus, the
impugned order may be quashed and trial
court be directed to summon the aforesaid
witnesses.

5. Per contra, learned counsel for the
opposite party no. 2 and learned A.G.A. for
the State have opposed this application u/s
482 Cr.P.C. on the ground that the
applicants/accused have delayed the trial of
the case by submitting various applications.
It has been next submitted that on the
application of the defence, the charge
framed u/s 302 & 395 I.P.C. was converted
to Section 396 I.P.C. on 13.10.2010.
Thereafter, on the application of defence,
vide order dated 20.10.2010, the court
summoned P.W.1 Rajesh Kumar and P.W.3
Vijay Kumar for cross-examination. It has
also been submitted that Ghanshyam
Ahirwar,
Investigating
Officer
of
C.B.C.I.D. was not earlier summoned
during trial. The defence has earlier filed
application for summoning P.W.1 Rajesh
Kumar and P.W.3 Vijay Kumar for reexamination which was rejected by the trial
court vide order dated 18.02.2008 and the
case was fixed for argument. It has further
been submitted that P.W.2 Dr. S.K.
Agarwal, who has prepared the postmortem
report, was thoroughly examined by the
defence on all points. Therefore, there was
no justification in the prayer of defence for
summoning
the
witnesses
for
crossexamination.

6. In support of his arguments,
learned counsel for the applicants has relied
on the following rulings :-

(i)
Manju
Devi
Vs.
State
of
Rajasthan and others, AIR 2019 SC 1976

ii) Natasha Singh Vs. C.B.I. (State),
2013 Lawsuit (SC) 404

7. Learned counsel for the informant
has also relied on the following rulings :-

(i) Swapan Kumar Chatterjee Vs.
Central Bureau of Investigation, (2019) 0
Supreme (SCC) 319

(ii) Rajaram Prasad Yadav Vs. State
of Bihar and Another, (2013) 0 Supreme
(SC) 589

(iii) Bhim Singh Vs. State of U.P.,
2022 (3) ADJ 87

8. In the case of Raghunandan Vs.
State of U.P., (1974) 4 SCC 186, the Apex
Court has held as follows :
662 INDIAN LAW REPORTS ALLAHABAD SERIES

"In a criminal case, the fate of the
proceeding cannot always be left entirely in
the hands of the parties. The court has also
a duty to see that essential questions are
not so far reasonably possible, left
unanswered. The provisions of Section 311
are intended to serve this purpose."

9. Section 311 Cr.P.C. reads as
follows :-

311. Power to summon material
witness, or examine person present - Any
Court may, at any stage of any inquiry, trial
or other proceeding, under this Code,
summon any person as a witness, or
examine any person in attendance, though
not summoned as a witness, or recall and
re-examine any person already examined;
and the Court shall summon and examine
or recall and re-examine any such person if
his evidence appears to it to be essential to
the just decision of the case.

10. This section is intended to be wide as
the repeated use of the word "any"
throughout its length clearly indicates. The
section is in two parts, the first part gives a
discretionary power but the second part is
mandatory. The use of the word "may" in
the first part and of the word "shall" in the
second
part
firmly
establishes
this
difference. The first part is permissive. The
court may act in one of the three ways :

(a) summon any person as a witness,

(b) examine any person present in the
court although not summoned, and

(c) recall or re-examine a witness
already examined.

The second part i.e. if the evidence of
such person appears to be essential to the
just decision of the case, it is obligatory and
compels the court to act in these 3 ways or
any of them. There is no limitation on the
power of the court arising from the stage to
which the trial may have reached, provided
the court is bonafide of the opinion that for
the just decision of the case, the steps must
be taken. The witnesses u/s 311 Cr.P.C. can
be recalled for the benefit of accused and
prosecution both. The only thing is that the
court has to form a bonafide opinion as to
the necessity of an order u/s 311 Cr.P.C.

11. In the case of Kamal Oil and
Allied Industries (P) Ltd. Vs. Delhi
Administration, 1982 Cr.L.J. 2046, the
Delhi High Court has held as follows:

"The paramount consideration is
doing justice to the case and not filling up
the gaps in prosecution or defence
evidence."

12. Considering the facts and
circumstances of the case, it transpires that
earlier charges against the accused were
framed u/s 302 and 395 I.P.C. and P.W.1
Rajesh Kumar, P.W.2 Dr. S.K. Agarwal,
P.W.3 Vijay Kumar and P.W.4 S.I. V.P.
Singh were examined. Thereafter, vide
order dated 13.10.2010, the trial court
converted the charge against the accused
and framed charge u/s 396 I.P.C. against
them.
The
court
vide
order
dated
13.10.2010 summoned P.W.1 and P.W.3 for
cross-examination. Against the order of
modification of charge u/s 396 I.P.C., the
informant filed Criminal Revision No.
4882 of 2010, Rajesh Kumar Singh Vs.
State of U.P. & Others and the High Court
vide order dated 18.11.2010 stayed the trial
of the sessions case. The aforesaid stay
order was vacated in 2023 in compliance of
the law propounded by Hon'ble Supreme
Court in Asian Resurfacing of Road
Agency Private Limited and Another v.
Central Bureau of Investigation, (2018)
8 All. Chandrajit Singh @ Chehku & Ors. Vs. State of U.P. & Anr.
663
16 SCC 299. Thereafter, P.W.1 Rajesh
Kumar and P.W.3 Vijay Kumar were crossexamined.
The
defence
submitted
application 354 Ka u/s 311 Cr.P.C. for
summoning P.W.2 Dr. S.K. Agarwal, P.W.4
S.I. V.P. Singh and Investigating Officer of
C.B.C.I.D., Ghanshyam Ahirwar who was
not earlier examined as his role in the
investigation
of
the
case
was
inconsequential.
From
the
aforesaid
discussion, it is clear that the delay in trial
of the session trial case occurred due to
informant's filing of Criminal Revision No.
4882 of 2010, Rajesh Kumar Singh Vs.
State of U.P. & Others and vide order dated
18.11.2010 passed by coordinate Bench of
this Court staying the further trial of the
related sessions trial case.

13. From the perusal of the crossexamination of P.W.1 Rajesh Kumar and
P.W.3 Vijay Kumar which was done after
modification of the charge, it transpires that
the defence has cross-examined the aforesaid
witnesses on the modified charge. Thus, to
rebut the evidence of these witnesses u/s 145
of the Indian Evidence Act, defence should
be granted opportunity to cross-examine
P.W.4 S.I. V.P. Singh regarding statements of
P.W.1 Rajesh Kumar and P.W.3 Vijay Kumar
u/s 161 Cr.P.C. Since the earlier framed
charge u/s 302 and 395 I.P.C. and the
modified charge u/s 396 I.P.C. both of them
relates to murder of a person, therefore, there
is no need to summon P.W.2 Dr. S.K.
Agarwal, who had conducted the postmortem
of the deceased Ashok Kumar Singh and
Layak Singh. Apart from this, the applicants
have not given reasons why the crossexamination of P.W.2 Dr. S.K. Agarwal is
necessary after modification of the charge.
Therefore, summoning P.W.2 Dr. S.K.
Agarwal u/s 311 Cr.P.C is not necessary and
prayer of the applicant in this regard cannot
be accepted.

14. As far as cross-examination of
Investigating
Officer
of
C.B.C.I.D.,
Ghanshyam Ahirwar, is concerned, he was
not even examined earlier after framing of
charge u/s 302 and 395 I.P.C. In the case of
Sukhwant Singh Vs. State of Punjab,
(1995) 3 SCC 367, the Apex Court has held
that :

"a witness cannot be tendered for
cross-examination alone. If he was not
examined in chief, he cannot be subjected
to cross-examination."

15. Thus, there is no ground to
summon P.W.2 Dr. S.K. Agarwal and
Investigating
Officer
of
C.B.C.I.D.,
Ghanshyam
Ahirwar.
Admittedly,
Investigating Officer P.W.4 S.I. V.P. Singh
was retired when he appeared earlier in
2006 in court for examination. Earlier, after
modification of the charge, defence had
filed application for summoning of P.W.1
Rajesh Kumar and P.W.3 Vijay Kumar
only. They had not prayed for summoning
of
P.W.2
Dr.
S.K.
Agarwal
and
Investigating
Officer
of
C.B.C.I.D.,
Ghanshyam Ahirwar for cross-examination.
Therefore, the court vide order dated
20.10.2010 had only summoned P.W.1
Rajesh Kumar and P.W.3 Vijay Kumar for
cross-examination.

16. Under the facts and circumstances
of the case, the applicants/defence shall be
granted opportunity to examine P.W.4 S.I.
V.P. Singh on payment of Rs.4,000/- as
costs which shall be paid to the witness on
his arrival. The aforesaid witness shall be
examined on the same date and defence
shall not be granted any adjournment for
cross-examination of P.W.4 S.I. V.P. Singh.

17. Under unavoidable circumstances
and not due to the default of the defence, if
664 INDIAN LAW REPORTS ALLAHABAD SERIES
the cross-examination of P.W.4 S.I. V.P.
Singh is not concluded on the date of his
arrival, it shall be concluded on the next
date subject to payment of additional cost
of Rs.4,000/- to the witness.

18. Subject to aforesaid conditions,
the present application u/s 482 Cr.P.C. is
allowed in part regarding summoning of
Investigating Officer, P.W.4 S.I. V.P. Singh.
However, the prayer regarding summoning
of
P.W.2
Dr.
S.K.
Agarwal
and
Investigating
Officer
of
C.B.C.I.D.,
Ghanshyam Ahirwar, is rejected
----------
(2023) 8 ILRA 664
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.07.2023

BEFORE

THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Crl. Misc. Anticipatory Bail Application No. 1179
of 2023
(U/s 438 Cr.P.C)

Suraj Harijan ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
Sri Deepak Kumar Tripathi

Counsel for the Respondents:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Section 438 - Indian Penal Code,
1860 - Section 461 - Indian Telegraph
Act, 1933 - Section 25 - Application for
Anticipatory Bail - offence of theft - FIR -
applicant's name was not named in the FIR - no
incriminating evidence was directly recovered
from him - The court noted that the applicant
had previously been given liberty to file a
regular bail application but had not done so -
court finds that, the allegations against the
applicant
were
based
on
circumstantial
evidence, and there was no direct evidence
linking him to the crime - held, there is no
justification to proceed with the present
anticipatory bail application as it is legally not
maintainable - hence - applicant is directed to
file a regular bail application as per the
guidelines laid down by the Supreme Court in
similar cases - accordingly, application is
rejected. (Para - 20, 21)

Application Rejected. (E-11)

List of Cases cited:

1. Satender Kumar Antil Vs C.B.I. & ors. -
(2022) 10 SCC 51,

2. Siddharth Vs St. of U.P. & anr - (2022) 1 SCC
676,

3. Aman Preet Singh Vs C.B.I. through Director -
2021 SCC OnLine SC 941,

4. Arnesh Kumar Vs St. of Bihar - (2014) 8 SCC
273,

5. Motion Vs C.B.I.- (2004) 72 DRJ 629,

6. Gaya Prasad Ramlal Vs St. of Mah. - AIR 1971
SC 1112.

(Delivered by Hon'ble Nalin Kuamr
Srivastava, J)

1. Heard learned counsel for the
applicant, learned A.G.A. for the State and
perused the record.

2. Apprehending his arrest the present
application has been moved on behalf of
the applicant - Suraj Harijan seeking
anticipatory bail in Case Crime No. 124 of
2021, under Section 461 IPC and Section
25 Indian Telegraph Act, Police Station-
Harpur Budahat, District- Gorakhpur.

3. The prosecution story as unfolded
in the FIR is that on 24.11.2021 at 7.10 AM