# Gyan Chandra & Ors v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2023) 4 ILRA 382
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-24
- **Case number:** Application u/s 482 No. 13699 of 2016
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gyan-chandra-ors-v-state-of-u-p-anr-opp-parties-49935
- **Pages:** 6

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Indian
Penal Code,1860 - Sections 363, 366,
376(2)(H) & 504
- 3⁄4 POCSO ActChallenge to-rejection order u/s 311 Cr.PC
for summoning the victim-victim could not
be cross-examined by the accused persons
who are facing the trial-Trial court closed
the
cross-examination
without
giving
proper opportunity and equal protection
of law to the defence side-Since the Victim
PW-2 was the material witness, it was the
duty of the trial court to provide full
opportunity
to
cross-examine
such
witness-Thus, where for the some reason
or the other, accused could not crossexamine the prosecution witnesses, the
concerned
court
may
re-call
such
witnesses
for
cross-examination
exercising the power u/s 311 Cr.P.C.(Para
1 to 28)
The application is allowed. (E-6)

List of Cases cited:

## Text

382 INDIAN LAW REPORTS ALLAHABAD SERIES
and the defence. This court, therefore, does
not find it appropriate to decide the said
issue on affidavits in these proceedings.

35. In view thereof, these petitions
being devoid of merit and substance are
hereby dismissed.
----------
(2023) 4 ILRA 382
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.03.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application u/s 482 No. 13699 of 2016

Gyan Chandra & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Sri Jay Babu Kesharwani, Sri Mohammad
Mustafa, Mohammad Firoz Khan

Counsel for the Opp. Parties:
G.A., Sri Ajay Vikram Yadav, Sri Satya Prakash

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Indian
Penal Code,1860 - Sections 363, 366,
376(2)(H) & 504
- 3⁄4 POCSO ActChallenge to-rejection order u/s 311 Cr.PC
for summoning the victim-victim could not
be cross-examined by the accused persons
who are facing the trial-Trial court closed
the
cross-examination
without
giving
proper opportunity and equal protection
of law to the defence side-Since the Victim
PW-2 was the material witness, it was the
duty of the trial court to provide full
opportunity
to
cross-examine
such
witness-Thus, where for the some reason
or the other, accused could not crossexamine the prosecution witnesses, the
concerned
court
may
re-call
such
witnesses
for
cross-examination
exercising the power u/s 311 Cr.P.C.(Para
1 to 28)
The application is allowed. (E-6)

List of Cases cited:

1. Raja Ram Prasad Yadav Vs St. of Bih. & anr.,
(2013) AIR SC 3081

2. Natasha Singh Vs C.B.I. (St.) (2013) Cr.L.J.
3346 SC

3. Dalveer Singh Vs St. of Raj. (2013) Cr.L.J.
3064

4. Sankat Mohan Prasad Vs St. of U.P. (2004)
ACC 933 (Alld.)
(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Sri Mohammad Firoz Khan,
learned counsel for the applicants, Sri
Pankaj Kumar Tripathi, learned Additional
Government Advocate for the State and
perused the record.

2. This application u/s 482 Cr.P.C has
been filed by all three accused persons
Gyan Chandra, Deshraj and Gopi @ Ashok
Kumar, for quashing the impugned order
dated 28th January, 2016 passed by the
Additional District & Sessions Judge /
F.T.C, Kaushambi in S.T No. 07 of 2015 -
State Vs. Gyan Chandra and others, under
Sections 363, 366, 376 (2) (H), 504 I.P.C
and 3⁄4 POCSO Act, Police Station - Sarai
Akil, Distrit Kaushambi, arising out Case
Crime No. 257 of 2013, by which the Trial
Court
rejected
the
application
under
Section 311 Cr.P.C for summoning the
victim P.W. 2 for cross-examination.

3. The brief facts of the case are that
the first informant Smt. Rampati W/o
Lavkush, lodged an F.I.R on 07.09.2013,
regarding the incident dated 05.09.2013
that on the fateful day she had gone to the
field for work leaving the victim (her
4 All. Gyan Chandra & Ors. Vs. State of U.P. & Anr.
383
daughter) aged about 14 years, student of
Class-VIII alone in her house and when she
returned back she found that her daughter
was not present and the household articles
were disordered. Accused-applicant Gyan
Chandra
S/o
Roshan
Lal
of
the
neighbourhood was also missing. Cash
amount Rs.10,000/-, a golden chain, golden
Mangalsutra, two silver anklet, and a bank
A.T.M Card of her husband of Union Bank
of
India
were
also
missing.
She
apprehended that accused- Gyan Chandra,
Deshraj and Gopi @ Ashok Kumar have
lured her daughter and have taken her
away. A few days back there was a dispute
with Gyan Chandra, who had threatened to
look into it and to insult her in the society.
She searched out her daughter but could not
find, hence report/information was lodged.

4. Contrary to the allegations levelled
in the F.I.R, it is averred by the applicants
that applicant no. 1 and the victim were
consenting party and had fallen in love to
each other and in this way both passed
about two months eleven days with each
other, they also got married and had also
prepared marriage agreement (Annexure
No. 2) on 25.11.2012 at Kaushambi.

5. The I.O. has submitted charge-sheet
wrongly. During the trial all the relevant
witnesses have been examined, but the
applicants were provided only a single date
for cross-examination of the victim, on the
said date due to illness of the counsel was not
in a position to cross-examine, hence an
adjournment application was moved, but the
learned trial court without giving any
opportunity for cross-examination, rejected
the application on 03.02.2015. Certified copy
of the relevant order-sheet since 13.01.2015
to 10.03.2016 is being annexed as Annexure
no. 3 to the affidavit.

6. An application under Section 311
Cr.P.C. was moved on 24.12.2015 before
the trial court for providing opportunity to
cross-examination of the victim P.W. 2,
which is annexed as Annexure no. 4 to this
affidavit, but it was rejected on 28th
January, 2016 without considering the facts
and circumstances of the case and without
giving any weight to the application. The
applicants are not willing to delay the trial,
but as they are behind the bar and the coaccused applicant no. 3 was in Haryana
Jail, since the victim P.W 2 is the main
witness, hence her cross-examination is
necessary for a fair trial and proper
adjudication. Applicant no. 1 and victim
are major and they have solemnized their
marriage at their own sweet-will. After
recovery and arrest the victim was sent to
their parents and applicant no. 1 was sent to
Jail. The order dated 28.01.2016 passed by
the trial court is arbitrary and perverse and
is liable to be quashed. Hence, the
application be allowed and an opportunity
be provided to cross examine the victim
P.W. 2.

7. The State has filed counter affidavit
no. 02 of 2016 and has alleged that the
contents of the application are not correct,
the victim was a minor girl aged about 15
years, hence no question arises to give
consent to the applicant no. 1, he had
abducted the victim minor daughter of
opposite party no. 2 and committed the
alleged offence. The I.O. has rightly
submitted the charge-sheet. The Applicants
were provided an opportunity to crossexamination, but they are continuously
lingering on the trial and are also
threatening to the O.P and the victim, they
had surrendered/arrested by the police. On
the direction of the Hon'ble Court on the
application of O.P. no. 2 with regard to fair
384 INDIAN LAW REPORTS ALLAHABAD SERIES
investigation, the charge-sheet had been
submitted.

8.

Applicants
have
political
background, two accused person are still
absconding, the trial court has rightly
rejected the application as the applicants
were applying delay tactic to delay the trial
inspite of specific direction of the Apex
Court for speedy trial of an offence under
Section 376 (2) (H) I.P.C, hence the
application be rejected.

9. No rejoinder affidavit has been
filed by the applicants, hence heard both
the parties and perused the record.

10. From perusal of the record, it
transpires that on 13th January, 2015 only
accused Gyan Chandra and Deshraj were
present, accused - Gopi @ Ashok Kumar
was not present in the court, even then
evidence of P.W 1 was recorded.

11. On 03rd February, 2015, only in
presence of Gyan Chandra and Deshraj and
in absence of accused Gopi @ Ashok
Kumar, (languishing in Gurgaon Jail
Haryana),
examination-in-chief
and
evidence of the prosecutrix was recorded
and when the adjournment application 29 -
B was produced, the same was rejected by
the then Presiding Officer. According to
this Court in absence of one co-accused -
Gopy @ Ashok Kumar and if no exemption
application on his behalf was moved, the
trial court was not competent enough to
record the evidence of the prosecutrix. In
the aforesaid circumstances, it was duty of
the trial court to ensure the presence of all
the three accused persons first and only in
present of all the accused persons or in case
if they are exempted through counsel,
evidence of the prosecutrix or any other
witness could be recorded, but the learned
trial court besides applying the Rules of
examination enumerated in Cr.P.C and the
Indian Evidence Act, not only recorded the
evidence of prosecutrix, but also closed her
cross-examination.

12. From perusal of the order-sheet, it
also reveals that when the witnesses were
not
present,
the
learned
trial
court
adjourned the case easily without seeking
any adjournment and on 21.04.2015, he
recorded statements of P.W. Nos. 3 and 4
only in present of accused Gyan Chandra
and Deshraj and in absence of co-accused
Ashok Kumar.

13. This Court is of the view that the
learned trial court has acted with manifest
error in recording the evidence. Further on
16.06.2015, the learned trial court has
recorded the statements of P.W 6 and 7 in
absence of co-accused - Gopi @ Ashok
Kumar. It was also improper exercise of the
power by the trial court.

14. It transpires that on 16.06.2015 an
application 36 - B was moved by the
prosecution under Section 319 Cr.P.C,
which would have been in respect of
summoning of some so called left accused
persons. On 09.7.2015, the application 36B has been disposed of, but it is not known
as to whether it was allowed or rejected,
however on 05.11.2015 in presence of all
the accused persons, the statement of P.W.
1 was again recorded (if there is no clerical
mistake regarding number of witnesses).
On 03.12.2015 when the accused persons
moved 42-B application for recalling of
witness P.W. 2, the prosecutrix, the same
was rejected on 28th January, 2016, which
has been challenged before this Court.

15. Statement of P.W. 2 is not before
this Court, hence this Court does not know
4 All. Gyan Chandra & Ors. Vs. State of U.P. & Anr.
385
as to whether the witness has supported the
prosecution version or not. As per Chapter
X of the Indian Evidence Act, 1872, if an
examination-in-chief of the witnesses have
been recorded, according to Section 138 so
examined witnesses would be crossexamined (if the adverse party so desires)
and the witnesses may be re-examined (if
the party calling him, so desires).

16. From the above discussions, it is
very much clear that the victim no. 2 could
not be cross-examined by the accused
persons, who are facing the trial. The
application had been moved during the
course of examination of the witnesses. It
has already been pointed out that the
learned trial court has illegally recorded the
evidence of the witnesses in absence of coaccused - Gopi @ Ashok Kumar. It could
not be established that on the said dates any
exemption application on behalf of coaccused Gopy @ Ashok Kumar was
produced and the same was allowed by the
trial court. It is also observed that the trial
of all the three accused persons were
cumulatively going on and the case/file of
accused - Gopi @ Ashok Kumar had not
been separated.

17. The impugned order discloses the
incorporation of rulings by the Presiding
Officer of his choice, without considering
that it was a matter of examination of the
witnesses rather the matter of Section 311
Cr.P.C. It is crystal clear that the trial court
has not provided proper opportunity and
equal protection of law to the defence side
while several dates have been given to the
prosecution
for
examination
of
the
witnesses without any adjournment, the
learned trial court closed the crossexamination
same
day,
rejecting
the
adjournment application of the defence,
and did not bother that the evidence of
victim P.W. 2 has been recorded in absence
of co-accused Gopi @ Ashok Kumar. It is
duty of the trial court to record the
demenure of the victim and the accused,
during the trial. This court is of the view
that at the time of recording of the
evidence of the prosecutrix the presence
of the accused persons was very much
necessary.

18. It is also duty of the public
prosecutor to ensure as to whether the
accused is present in the court or not during
the examination of the witness. It appears
that neither the trial judge nor the public
prosecutor performed their duties well.

Learned
trial
judge
could
not
understand the abstracts behind the section
in which the accused persons had moved
application to recall the witness for cross
examination. He also could not consider
that two accused persons were in District
Jail and one accused Gopi @ Ashok Kumar
was in Gurgaon Jail and for a accused, who
is languishing in jail, it becomes very
problematic and tedious job to prosecute or
defend the case. Generally they are unable
to pay fee and draw proper attention of the
counsel and the Court.

19. When all the three accused
persons gathered together, they moved recall application during the course of trial
and before the closer of the prosecution
evidence. The trial court referring some
rulings
of
his
choice,
rejected
the
application in the aforesaid circumstances
for which he was responsible.

20. From the above discussion, it has
been established that the trial court was not
doing fair trial in accordance with the code
of criminal procedure and the Indian
Evidence Act.
386 INDIAN LAW REPORTS ALLAHABAD SERIES

Section 311 Cr.P.C, 1973, is as under :
-

"Section 311 in The Code Of
Criminal Procedure, 1973.

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."

21. From the above, it is very much
clear that there are two part of this Section.
According to first part of the Section, the
Court can exercise the power :-

(1) to summon any person as a
witness, or.

(2) to examine any persons in
attendance, though not summoned as a
witness, or,

(3) to recall and re-examine any
person already examined.

The second part, which is mandatory
and imposes an obligation on the Court:-

(1) to summon and examine, or
(2) to recall and re-examine any such
person, if his evidence appears to be
essential to the just decision of the case.

22. Since the victim P.W. 2 was the
material witness, therefore to provide full
opportunity to cross-examine such witness
was the duty of the trial court.

23. In Raja Ram Prasad Yadav Vs.
State of Bihar and Anr. A.I.R 2013 (SC)
3081, it has been held that it is, therefore
imperative that invocation of Section 311
Cr.P.C and its application in a particular
case can be ordered by the Court, only by
bearing in mind the object and purport of
the said provisions, namely, for achieving a
just decision of the case. The power vested
under the said provisions is made available
to any court at any stage in any inquiry or
trial or other proceedings initiated under
the code for the purpose of summoning any
person as a witness or for examining any
persons in attendance, even though not
summoned as witnesses or to re-call or reexamine any person in attendance. In so far
as recalling and re-examining of any person
already
examined,
the
court
must
necessarily consider and ensure that such
re-call and re-examination of any person,
appears in the view of the court to be
essential for the just decision of the case.

24. In Natasha Singh Vs. C.B.I.
(State) 2013 Cr.L.J. 3346 (SC), it has been
held that fair trial entails the interest of the
accused, the victim and of the society, and
therefore, fair trial includes the grant of fair
and proper opportunity to the persons
concerned. To adduce evidence in support
of the defence is a valuable right. Denial of
such right would amount to denial of a fair
trial.

25. In Dalveer Singh Vs. State of
Rajasthan 2013 Cr.L.J 3064, it is held that
where the counsel of the accused failed to
cross-examine the prosecution witness, the
accused could not be made to suffer
because of mistake of his counsel in not
cross examining the said witness, hence
application for re-calling of the witnesses
was allowed.

26. In Sankat Mohan Prasad Vs.
State of U.P. 2004 ACC 933 (Alld.) this
Court held that where for the some reason
4 All. Ajay Kumar Vs. State of U.P. & Anr.
387
or the other, counsel for the accused could
not
cross-examine
the
prosecution
witnesses, the concerned court may re-call
such
witnesses
for
cross-examination
exercising the power under Section 311
Cr.P.C.

27. On the basis of above discussions
it is concluded that the accused persons
have been illegally denied the opportunity
of cross-examination by the then trial
judge. It is the duty of the court to examine
the essential material witness in due course
of law. The cause of justice would only be
served
after
examining
the
material
witnesses in right perspective after giving
due opportunity of cross-examination to the
defence.

28. On the above discussion, this
Court comes to the conclusion that the
learned trial court had committed manifest
error during the course of trial in recording
the evidence and has proceeded with the
case in harried manner in violation of the
principles of natural justice and fair trial.
The impugned order is not sustainable in
the eye of law and deserves to be quashed.

O R D E R

(a) This Application U/s 482 Cr.P.C is
allowed.

(b) The impugned order dated 28th
January, 2016, passed by the concerned
trial court is hereby quashed.

(c) The learned trial court is directed
to re-call the victim P.W. 2 for her crossexamination on behalf of all the three
accused persons.

(d) Let a certified copy of this order be
sent to the concerned court for its
compliance immediately.
----------
(2023) 4 ILRA 387
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.04.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application u/s 482 No. 16161 of 2022

Ajay Kumar ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Umesh Kumar

Counsel for the Opp. Parties:
G.A.

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973 - Section 482 - U.P.
Excise Act,1910 -Sections 60, 63 & 72Challenge to-rejection order regarding
release of vehicle-applicant is the owner
of vehicle and the three relatives had
taken the applicant's vehicle on rentWhen the applicant came to knowledge
about the incident after two months he
lodged FIR against his relative-When the
release
application
and
the
revision
against the rejection order of CJM were
pending, the impugned vehicle was under
the
process
of
confiscation-Later
confiscation proceeding has become final
at the end of District Magistrate and the
vehicle had been auctioned-In this case,
since no corpus is into existence for
release hence this application has also
become infructuous-Thus, the impugned
order passed by the learned CJM and
revisional court is factually and legally
correct-Section 72 of the Act does not
contain any provision indicating that such
seized property may be released by the
magistrate in exercise of his power u/s
457 CrPC as sub section (1) to (4) of
Section 72 clearly denudes the magistrate
of his power to pass any order u/s 457
CrPC for release of anything seized in
connection of an offence purporting to