# Girish (In Jail) v. State of U.P. & Anr - **Citation:** (2020) 11 ILRA 23 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2020-08-17 - **Case number:** Application U/S 482 No. 4300 of 2020 - **Bench:** Gautam Chowdhary - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/girish-in-jail-v-state-of-u-p-anr-45388 - **Pages:** 4 ## Headnote 24 INDIAN LAW REPORTS ALLAHABAD SERIES Criminal Law - Criminal Procedure Code (2 of 1974) - Section 311 - Recall of witness u/s 311 - when not permissible - mere incompetence / change of counsel cannot be ground to recall witness - Engagement of new counsel and dawn of fresh wisdom cannot be allowed to delay matter (Para 6) Accused through subsequent engaged counsel sought permission for re-examination of P.W.1 - On the ground that previously engaged counsel engaged - had not asked relevant questions to witness - Application for summoning of witness for cross examination rejected. (Para 6) Dismissed (E-5) Listed of Cases cited:- AG Vs Shiv Kumar Yadav & anr. (2016) 2 SCC 402 ## Text 11 All. Girish Vs. State of U.P. & Anr. 23 the local dealers, prima facie examination of the goods by naked eye and inscriptions in foreign language on some bags. We are not inclined to accept the reasons given for forming a belief for exercise of power of seizure are valid in law. The said reasons even fail the test of ''wednesbury principles' as no reasonable person can reach to conclusion of the country of origin of ''Areca Nuts' by mere perusal from naked eye as well as the opinion of the traders, as the Institutes as well as the Ministry have firmly opined that the country of origin cannot be traced by any laboratory method also. 34. It is also common ground that 'Areca Nuts' is neither prohibited nor notified goods. 35. The order of the seizure is further bad in law as it has failed to follow the specific instructions contained in Instruction No. 1/2017, which are binding on the respondent authorities. 36. Thus, the basis for forming ''reasons to believe' as recorded in the Panchnama are wholly without any acceptable material and there being no prima facie material to suggest that the goods in questions were of foreign origin or were smuggled into India from any Customs Station or that the goods were imported without payment of import duty, we have no hesitation in holding that no valid ''reasons to believe' existed for exercising the powers of seizure as was done by means of Panchnama dated 17.8.2020. Consequently, the seizure order dated 17.8.2020 is quashed. 37. Once we have quashed the seizure order dated 17.8.2020, we do not deem it fit to address on the question of validity and legality of the provisional release order inasmuch as once the seizure is held to be bad in law, no confiscation can take place, however, we leave the other arguments raised by the counsel for the petitioners while attacking the provisional release order open. 38. In view of the findings recorded above, we direct that the respondent authorities shall forthwith release the goods i.e. ''Areca Nuts' as well as the vehicle in question in favour of the petitioner nos. 1 and 2 respectively on the petitioners filing a copy of this order before the authority concerned. 39. The writ petition is allowed in terms of the said order passed. 40. Copy of the judgment downloaded from the official website of this Court shall be treated/accepted as certified copy of the judgment. ---------- (2020)11ILR A23 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 21.09.2020 BEFORE THE HON'BLE GAUTAM CHOWDHARY, J. Application U/S 482 No. 4300 of 2020 Girish ...Applicant(In Jail) Versus State of U.P. & Anr. ...Opposite Parties Counsel for the Applicant: Sri Prabhat Kumar Srivastava, Sri Brajesh Kumar Counsel for the Opposite Parties: A.G.A. 24 INDIAN LAW REPORTS ALLAHABAD SERIES Criminal Law - Criminal Procedure Code (2 of 1974) - Section 311 - Recall of witness u/s 311 - when not permissible - mere incompetence / change of counsel cannot be ground to recall witness - Engagement of new counsel and dawn of fresh wisdom cannot be allowed to delay matter (Para 6) Accused through subsequent engaged counsel sought permission for re-examination of P.W.1 - On the ground that previously engaged counsel engaged - had not asked relevant questions to witness - Application for summoning of witness for cross examination rejected. (Para 6) Dismissed (E-5) Listed of Cases cited:- AG Vs Shiv Kumar Yadav & anr. (2016) 2 SCC 402 (Delivered by Hon'ble Gautam Chowdhary, J.) 1. Heard learned counsel for the applicant, learned A.G.A. and perused the record. 2. This application under section 482 Cr.P.C. has been filed with a prayer to allow the application and quash the impugned order dated 12.12.2019 passed by the learned Addl. Sessions Judge/ FTC No.1 , Gautam Budh Nagar in Sessions Trial No. 700 of 2017 (State Vs. Brahmpali and others) arising out of case crime no. 423 of 2017, under sections 498-A, 323, 304-B IPC and section 4 D.P. Act, Police Station Jewar, District Gautam Budh Nagar with a further prayer to stay the proceedings of above mentioned case. 3. The submissions advanced by learned counsel for the revisionist that the previous counsel engaged in this case had not asked the relevant questions from the P.W. 1. and therefore subsequent counsel seeks permission for re-examination of P.W.1. Further submission is that the application filed on 24.09.2019 under section 311 Cr.P.C. by the accused before the learned Trial Court, the same has been dismissed without applying the judicial application of mind by the learned Trial Court. 4. Per contra, learned A.G.A. has advanced the argument that the relief as sought by the revisionist's counsel cannot be granted under section 311 Cr.P.C. by this Court at this stage only on the basis that the applicant has engaged a subsequent counsel for re-examination of P.W.1. Further learned A.G.A. pointed out all the relevant paras of the impugned order passed by the Additional Sessions Judge/FTC-I, Gautambudh Nagar in the impugned order dated 12.12.2019 raised by counsel for the accused, which are as under:- "ih0 MCyw0 1 ls dbZ egRoiw.kZ fcUnqvksa ij vfHk;qDr fxjh'k ds iwoZ vf/koDrk }kjk ftjg ugha dh x;h gSA ih0 MCyw0 1 ls vfHk;qDr fxjh'k ,oa czgeikyh ds laca/k esa fuEufyf[kr egRoiw.kZ fcUnqvksa ij ftjg djuk vko';d gSA 1& oknh dh gSfl;r ds laca/k esaA 2& ,Uvh VkbZe izFke lwpuk fjiksVZ iqfyl ds lykg e'kojs ds laca/k esasA 3& fpV~Bh ,oa i=ksa ds ckjs esaA 4& oknh ls fxjh'k ds laca/kksa ds ckjs esaA 5& lksuw }kjk fdrus cts lwpuk nh x;h ds ckjs esaA 6& oknh ds xkao ls vfHk;qDrx.kksa ds ?kj dh nwjhA 7& ?kVukLFky ,oa uD'kkutjh ds ckjs esaA 8& esfMdy ,oa iksLVekVZe fjiksVZ ds laca/k esaA 9& e`rdk }kjk dh x;h vkRegR;k ;k ,DlhMsUVy e`R;q ds ckjs esaA 10& lwu chQksj gj MSFk lCtSfDVM Vw dz:,YVh ckbZ gLcSaM vWkj ckbZ fjysfVo vWkQ gj gLcSaMA 11& lSijsV fyfoaxA 12& fMQsUl ojtuA 13& vU; iz'u ekuuh; U;k;ky; dh vuqefr lsA 14& dUVzkfMDlu 161 na0uiz0la0 o vWkehfl;uA" 5. Learned A.G.A. has also relied upon the judgment of Hon'ble Apex Court 11 All. Girish Vs. State of U.P. & Anr. 25 in AG Vs. Shiv Kumar Yadav and another (2016) 2 SCC 402. The relevant paragraphs of the aforesaid judgment are quoted below: "27. It is difficult to approve the view taken by the High Court. Undoubtedly, fair trial is the objective and it is the duty of the court to ensure such fairness. Width of power under Section 311 Cr.P.C. is beyond any doubt. Not a single specific reason has been assigned by the High Court as to how in the present case recall of as many as 13 witnesses was necessary as directed in the impugned order. No fault has been found with the reasoning of the order of the trial court. The High Court rejected on merits the only two reasons pressed before it that the trial was hurried and the counsel was not competent. In the face of rejecting these grounds, without considering the hardship to the witnesses, undue delay in the trial, and without any other cogent reason, allowing recall merely on the observation that it is only the accused who will suffer by the delay as he was in custody could, in the circumstances, be hardly accepted as valid or serving the ends of justice. It is not only matter of delay but also of harassment for the witnesses to be recalled which could not be justified on the ground that the accused was in custody and that he would only suffer by prolonging of the proceedings. Certainly recall could be permitted if essential for the just decision but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary "for ensuring fair trial" is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial. Having regard to these considerations, we do not find any ground to justify the recall of witnesses already examined. 28. It will also be pertinent to mention that power of judicial superintendence under Article 227 of the Constitution and under Section 482 Cr.P.C. has to be exercised sparingly when there is patent error or gross injustice in the view taken by a subordinate court[47]*. A finding to this effect has to be supported by reasons. In the present case, the High Court has allowed the prayer of the accused, even while finding no error in the view taken by the trial court, merely by saying that exercise of power was required for granting fair and proper opportunity to the accused. No reasons have been recorded in support of this observation. On the contrary, the view taken by the trial court rejecting the stand of the accused has been affirmed. Thus, the conclusion appears to be inconsistent with the reasons in the impugned order. 29. We may now sum up our reasons for disapproving the view of the High Court in the present case: (i) The trial court and the High Court held that the accused had appointed counsel of his choice. He was facing trial in other cases also. The earlier counsel were given due opportunity and had duly conducted cross- examination. They were under no handicap; 26 INDIAN LAW REPORTS ALLAHABAD SERIES (ii) No finding could be recorded that the counsel appointed by the accused were incompetent particularly at back of such counsel; (iiii) Expeditious trial in a heinous offence as is alleged in the present case is in the interests of justice; (iv) The trial Court as well as the High Court rejected the reasons for recall of the witnesses; (v) The Court has to keep in mind not only the need for giving fair opportunity to the accused but also the need for ensuring that the victim of the crime is not unduly harassed; (vi) Mere fact that the accused was in custody and that he will suffer by the delay could be no consideration for allowing recall of witnesses, particularly at the fag end of the trial; (vii) Mere change of counsel cannot be ground to recall the witnesses; viii) There is no basis for holding that any prejudice will be caused to the accused unless the witnesses are recalled; (ix) The High Court has not rejected the reasons given by the trial court nor given any justification for permitting recall of the witnesses except for making general observations that recall was necessary for ensuring fair trial. This observation is contrary to the reasoning of the High Court in dealing with the grounds for recall, i.e., denial of fair opportunity on account of incompetence of earlier counsel or on account of expeditious proceedings; (x) There is neither any patent error in the approach adopted by the trial court rejecting the prayer for recall nor any clear injustice if such prayer is not granted." 6. Considering the facts and circumstances of the case, arguments advanced and after going through the entire judgment, this court is of the view that the arguments advanced by the counsel is not sustainable and that the plea can not be taken by the revisionist's counsel that he has been subsequently engaged, therefore, one more opportunity may be given to him. It is within the rights of the litigant to engage any counsel at any stage but the engagement of the new counsel and the dawn of fresh wisdom upon the first informant cannot be allowed to further delay the matter. The circumstances under which the application was rejected out are sufficiently shown in the impugned order. The impugned order does not reflect any element of inconsistency or any abuse of court's process which may persuade this Court to interfere in the same. 7. The prayer for summoning the P.W. 1 for cross examination is therefore refused. 8. Accordingly, this application lacks merit and is hereby dismissed. ---------- (2020)11ILR A26 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 18.02.2020 BEFORE THE HON'BLE RAM KRISHNA GAUTAM, J. Application U/S 482 No. 6411 of 2020 Syed Nadeem Tariq ...Applicant Versus State of U.P. & Anr. ...Opposite Parties Counsel for the Applicant: Sri Amit Kumar Srivastava Counsel for the Opposite Parties: A.G.A.