# followed by Learned Single Judge in Durga Prasad Tandon v. Gaur Brahmin Sabha 2000 (4) AWC 2848

- **Citation:** (2007) 1 ILRA 201
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-09-08
- **Case number:** Criminal Revision No. 3996 of 2004
- **Bench:** Amar Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/followed-by-learned-single-judge-in-durga-prasad-tandon-v-gaur-brahmin-sabha-40825
- **Pages:** 4

## Headnote

Code of Criminal Procedure-Section 311Application
for
re-examination
of
witness-after one year-it is for the court
to ensure justice-ends of justice is higher
than end of law-held-it is for Trail Court
to
apply
its
independent
mind
in
evaluating the value of evidence.

Held: Para 5

I
am
not in agreement with this
contention of the learned counsel for the
petitioner. The ends of justice are higher
than the mere ends of law, and it is for
the Courts to ensure that justice is not
made hostage to the money or muscle
power of accused persons who after
committing crimes are determined to
sabotage their trials and to prevent them
from reaching their culmination. The
time factor in moving the application for
re-examination of the witnesses who
had become hostile is also not allimportant, as it may have taken time for
the witnesses to regain confidence and
to overcome their fear of the accused for
deposing about the true version in Court.

## Text

1 All] Deepak V. State of U.P. and another
201
can now question the validity of the
compromise in view of R. I A of O. 43 of
the Code."

11. The aforesaid judgment has been
followed by Learned Single Judge in
Durga
Prasad
Tandon
Vs.
Gaur
Brahmin Sabha 2000 (4) AWC 2848.

The submission of the learned
counsel for the appellant that instead of
filing a miscellaneous appeal, a regular
appeal under Section 96 C.P.C. was filed
and
therefore
the
same
was
not
maintainable needs to be noted. However,
he could not dispute that even if a
miscellaneous appeal would lie before the
Court below and there will not be change
of forum of the appellate court may be a
regular appeal or a miscellaneous appeal.
Assuming for a moment that the said
argument of the appellant has some force
it will not make any difference as it has
been firmly established that mere mention
of a wrong Section will not make any
difference if the court had the jurisdiction
to entertain and decide the appeal.

In view of the above discussion I
find no merit in the appeal. The appeal is
dismissed.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.09.2006

BEFORE
THE HON'BLE AMAR SARAN, J.

Criminal Revision No. 3996 of 2004

Deepak

...Revisionist
Versus
State of U. P. and another

...Opposite parties

Counsel for the Revisionist:
Sri T.K. Srivastava

Counsel for the Opposite Parties:
Sri Mahipal Singh
A.G.A.

Code of Criminal Procedure-Section 311Application
for
re-examination
of
witness-after one year-it is for the court
to ensure justice-ends of justice is higher
than end of law-held-it is for Trail Court
to
apply
its
independent
mind
in
evaluating the value of evidence.

Held: Para 5

I
am
not in agreement with this
contention of the learned counsel for the
petitioner. The ends of justice are higher
than the mere ends of law, and it is for
the Courts to ensure that justice is not
made hostage to the money or muscle
power of accused persons who after
committing crimes are determined to
sabotage their trials and to prevent them
from reaching their culmination. The
time factor in moving the application for
re-examination of the witnesses who
had become hostile is also not allimportant, as it may have taken time for
the witnesses to regain confidence and
to overcome their fear of the accused for
deposing about the true version in Court.

(Delivered by Hon'ble Amar Saran, J.)

1. This criminal revision has been
filed for challenging the order dated
2.9.2004
passed
by
the
Additional
Sessions
Judge,
FTC
No.2,
Bijnor
allowing the application moved by the
complainant-opposite party No. 2 under
Section 311 Cr.P.C. seeking to reexamine Rakesh Kumar and Virendra
Singh in S.T. No. 220 of 2002 (State Vs.
Deepak and others), under Sections
302/324 IPC, police station Haldaur,
district Bijnor.
202 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
2. The revisionist Deepak along with
two other co-accused Chandu and Sumer
had been arrayed as accused in the FIR
dated 18.5.2001, which alleged that the
incident had taken place on 18.5.2001 at
about 9 P.M. where the brother of the
informant Madan was murdered by the
accused persons including the revisionist.
The role of the revisionist was to give a
knife blow on the chest of the deceased
while the other co-accused Chandu and
Sumer were assigned the role of catching
hold of the deceased at the time of
incident.

3. However, when the witnesses
appeared in court, they turned hostile.
An application ext. Kha 85, which
contained a copy of a report in case No.
467
C
of
2003
under
Sections
452/504/506 IPC lodged at police station
Haldaur, which alleged that the accused
Sumer and Chandu (who have been
granted bail in the present case) armed
with country made pistols had intimidated
and threatened the witness Rakesh Kumar
on 25.7.2003 at 6 P.M. and had exerted
pressure on them to turn hostile in the
murder case. It was on account of this
threat, that the witnesses could not give
the true version in the court because there
was such a great terror of the accused
persons. On account of this application
and the FIR in case crime No. 467 C of
2003, the impugned order had been
passed by the Additional Sessions Judge
FTC No.2, Bijnor.

4. The principal ground for
challenging the impugned order was that
the application had been moved by O.P.
No.2 on 25.8.2004, i.e. after one year of
the examination of the witnesses PW. 1
Rakesh and P. W. 2 Virendra and it was
moved belatedly after the other witnesses
had been examined just prior to the
recording of 313 Cr.P.C. statement of the
accused and that no good ground for
allowing the application under Section
311 Cr.P.C. after such a long lapse of
time.

5. I am not in agreement with this
contention of the learned counsel for the
petitioner. The ends of justice are higher
than the mere ends of law, and it is for the
Courts to ensure that justice is not made
hostage to the money or muscle power of
accused persons who after committing
crimes are determined to sabotage their
trials and to prevent them from reaching
their culmination. The time factor in
moving the application for re-examination
of the witnesses who had become hostile
is also not all-important, as it may have
taken time for the witnesses to regain
confidence and to overcome their fear of
the accused for deposing about the true
version in Court.

6. In a Division Bench criminal
appeal in the case of Kundan Singh and
others v. State of U.P., Criminal Appeal
No. 1194 of 1988 writing for the bench I
have held that the Majesty of Justice is to
be upheld. When the witnesses are not
prepared to come out with the entire truth
and are turning hostile and the police
agency and the public prosecutor also do
not appear to be completely independent
and supportive of the prosecution case,
the onus of the Court is even heavier, and
if the court is to maintain public
confidence in the administration of justice
and to vindicate and uphold the 'majesty
of the law' it is important that it does not
meekly surrender before a wily accused
and allow the criminal justice system to
be derailed because the accused succeeds
in winning over some of the witnesses
1 All] Deepak V. State of U.P. and another
203
inducing them to turn hostile, or wins
over the police or even the public
prosecutor to his side.

7. It would also be appropriate here
to reiterate the pertinent observations of
the Apex Court in paragraph 58 and 59 in
the case of Zahira Habibullah H. Shaikh
v. State of Gujarat, AIR 2004 SC 3114:

"58. The Courts at the expense of
repetition we may state, exist for doing
justice to the persons who are affected.
The Trial/First Appellate Courts cannot
get swayed by abstract technicalities and
close their eyes to factors which need to
be positively probed and noticed. The
Court is not merely to act as a tape
recorder recording evidence, overlooking
the object of trial i.e. to get at the truth. It
cannot be oblivious to the active role to
be played for which there is not only
ample
scope,
but
sufficient
powers
conferred under the Code. It has a
greater duty and responsibility i.e. to
render justice, in a case where the
role of prosecuting agency itself is
put in issue and is said to be hand in
glove with the accused, parading a
mock fight and making a mockery of
the criminal justice administration
itself.

As pithily stated in Jennison v.
Backer (1972 (1) All ER 1006), "The
law should not be seen to sit limply,
while those who defy it go free and,
those who seek its protection lose
hope". Courts have to ensure that
accused persons are punished and that
the might or authority of the State are
not used to shield themselves or their
men. It should be ensured that they do
not wield such powers which under the
Constitution has to be held only in trust
for the public and society at large. If
deficiency in investigation or prosecution
is visible or can be perceived by lifting
the veil trying to hide the realities or
covering the obvious deficiencies. Courts
have to deal with the same with an iron
hand appropriately within the framework
of law. It is as much the duty of the
prosecutor as of the Court to ensure that
full and material facts are brought on
record so that there might not be
miscarriage of justice. (See Shakila Abdul
Gafar Khan (Smt.) v.. Vasant Raghunath
Dhobe, (2003(7) SCC 749)." (Emphasis
'supplied)

8. On examination of the witnesses
in exercise of powers under section 311 of
the Code of Criminal Procedure, what
value is to be assigned to their testimony
and the question as to whether the
witnesses had indeed been terrorized by
the accused to turn hostile or they had
voluntarily resiled from the prosecution
case
at
the
time
of
their
initial
examination in Court are matters for
appreciation by the trial court which must
exercise
its
independent
mind
in
evaluating the value of the testimony of
the witnesses, uninfluenced by any
observations hereinabove.

9. The Revision has, therefore, no
force and it is dismissed. Stay order dated
16.9.2004 is vacated.

10. However as the trial has
remained stayed for a long time in view of
the High Court's stay order the trial court
is now directed to proceed with the trial
and to conclude it expeditiously.
204 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
11.

Office
is
directed
to
communicate this order to the Court
below within two weeks.
Revision Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.10.2006

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No. 9461 of 1988

Rajendra Singh & another ...Petitioners
Versus
Additional
Commissioner,
Jhansi
division, Jhansi & others ...Respondents

Counsel for the Petitioners:
Sri Kunal Ravi Singh

Counsel for the Respondents:
Sri Ranvir Singh
S.C.

U.P. Imposition Ceiling on Land Holding
Act 1960-Section 5 (2)-Surplus landafter declaration of surplus land by
Prescribed authority on 2.3.1983-during
pendancy
of
appeal-impladment
application by the petitioner-that plot
no. 510 1 Bigha 16 Biswa wrongly
treated the land of respondent No. 4 as
he has been declared bhumidhar by
S.D.O.-held-keeping
in
view
of
explanation II of section 5 inspite of
decree of 1985 the land will be treated
of original tenure holder-No right or title
can be claimed by the petitioner.

Held: Para 6 & 7

In view of the above explanation (ii), in
spite of decree of 1985 land will have to
be treated to be of respondent No.4. In
this regard reference may be made to
Vinod Kumar Vs. Commissioner 2004(97)
RD 17(SC) and D.N. Agarwal Vs. State
1996
RD
112.
Moreover,
suit
was
decreed ex-parte. It was filed and
decreed after possession had been taken
by the State.

In my opinion, therefore petitioner can
not claim any right in the land in dispute
and it was validly given in the choice by
respondent No.4 to be taken as surplus
land.
Case law discussed:
2004 (97) RD (17) SC
1996 RD-112

(Delivered by Hon'ble S.U. Khan, J.)

1. This writ petition arises out of
proceedings under U.P. Imposition of
Ceiling on Land Holdings Act 1960
(hereinafter referred to as the Ceiling
Act). Respondent No.4 Rameshwar Singh
was tenure holder of the agricultural land
in dispute. Ceiling proceedings were
initiated against him in the form of case
No. 260 which was decided on 2.3.1983
by prescribed authority Kalpi district
Jalaun. Through the said order 7.88 acres
of irrigated land of respondent No.4 was
declared as surplus. Against the said order
appeal No.99/101/10 of 1985-86 was filed
by the respondent No.4, which was
dismissed on 12.2.1988 by respondent
no.1.

2. During pendency of appeal,
petitioners filed impleadment application
stating therein that one of the plots i.e.
plot No. 510 area one bigha, 16 biswa was
wrongly treated to be held by respondent
No.4 and it was actually the petitioners
who were tenure holder of the said plot as
they had matured their right through
adverse possession against respondent
no.4 and they had also filed declaration
suit under section 229 B of U.P.Z.A.L.R
Act which was pending at that time before
S.D.O.
It
was
further
stated
that
petitioners were recorded in column No.9