# Indra Pal and another v. State of U.P. and another

- **Citation:** (2010) 3 ILRA 1186
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-11-02
- **Case number:** Criminal Revision No. 4755 of 2010
- **Bench:** S.C. Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/indra-pal-and-another-v-state-of-u-p-and-another-41745
- **Pages:** 3

## Headnote

Code of Criminal Procedure-Section 315Right
of
Cross-examination
earlier
Defence Counsel fail to cross examine the
prosecution
witness-offence
under
Section 328, 304 I.P.C.-Subsequently new
counsel engaged who find out such
lacuna-application to cross examinationRejected by Trail Court on ground earlier
even on opportunity failed to crossexamine-held-in such a serious matter for
negligence of earliar Counsel Revisionist
not be punished-opportunity subject to
payment of cost of Rs. 3000 given.

Held: Para 7

Admittedly, P.W.1, P.W.3 & P.W.5 were
examined by the prosecution and they
were not cross-examined at all by the
then learned counsel for the defence.
Now, the revisionists - accused have
engaged a new counsel and on perusal of
the record, he found that these three
witnesses could not be cross-examined at
all
and
consequently
he
moved
an
application under section 311 Cr.P.C. for
this purpose. In view of the facts that
these three witnesses have not been
cross-examined at all, learned Addl.
Sessions Judge was not justified in
rejecting the application. The case against
the revisionists is under sections 328, 304
IPC,
which
is
punishable
with
life
imprisonment. In such a serious case, the
right of cross-examination of the accused
should not be foreclosed forever due to
the fault of the counsel and client should
not be penalized for the fault of the
counsel. It was the duty of the trial court
to afford reasonable opportunity to the
accused for cross-examination of the
witnesses.

## Text

1186 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
court, its appeal ordinarily lies in the court of
sessions. The proviso of section 372 Cr.P.C.
does not permit to prefer the appeal before
this court by bye passing the Court of
Sessions. The appeal against the order of the
acquittal passed by learned A.C.J.M.-III,
Gautambudh Nagar shall lie in the court of
sessions at Gautambudh Nagar. This appeal
does not lie to this court, therefore this appeal
is not maintainable.

5. The Reporting Section of this court
has not gone through the 'proviso of section
372 Cr.P.C.'s and without making any
remarks of objection, the appeal has been
reported.

6. This appeal is disposed of as non
maintainable to this court with a liberty to
file fresh appeal before the court of sessions
concerned.

7. Let a certified copy of this order be
communicated to the Reporting Section of
this court.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.11.2010

BEFORE
THE HON'BLE S.C. AGARWAL, J.

Criminal Revision No. 4755 of 2010

Indra Pal and another
 ...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Revisionists:
Sri P.K. Kashyap

Counsel for the Opposite Parties:
A.G.A.

Code of Criminal Procedure-Section 315Right
of
Cross-examination
earlier
Defence Counsel fail to cross examine the
prosecution
witness-offence
under
Section 328, 304 I.P.C.-Subsequently new
counsel engaged who find out such
lacuna-application to cross examinationRejected by Trail Court on ground earlier
even on opportunity failed to crossexamine-held-in such a serious matter for
negligence of earliar Counsel Revisionist
not be punished-opportunity subject to
payment of cost of Rs. 3000 given.

Held: Para 7

Admittedly, P.W.1, P.W.3 & P.W.5 were
examined by the prosecution and they
were not cross-examined at all by the
then learned counsel for the defence.
Now, the revisionists - accused have
engaged a new counsel and on perusal of
the record, he found that these three
witnesses could not be cross-examined at
all
and
consequently
he
moved
an
application under section 311 Cr.P.C. for
this purpose. In view of the facts that
these three witnesses have not been
cross-examined at all, learned Addl.
Sessions Judge was not justified in
rejecting the application. The case against
the revisionists is under sections 328, 304
IPC,
which
is
punishable
with
life
imprisonment. In such a serious case, the
right of cross-examination of the accused
should not be foreclosed forever due to
the fault of the counsel and client should
not be penalized for the fault of the
counsel. It was the duty of the trial court
to afford reasonable opportunity to the
accused for cross-examination of the
witnesses.

(Delivered by Hon'ble S.C. Agarwal, J.)

1. Heard learned counsel for the
revisionists, learned A.G.A. for the State and
perused the material available on record.

2. No notice is issued to private
opposite party in view of the order proposed
to be passed today, however, liberty is
3 All] Indra Pal and another V. State of U.P. and another
1187
reserved for private opposite party to apply
for variation or modification of this order if
she feels so aggrieved.

3. This revision is directed against the
order dated 25.8.2010 passed by Additional
Sessions Judge, Court No.12, Bareilly in
Sessions Trial No.492 of 2006 State Vs.
Indra Pal & others under sections 328, 304
IPC, P.S. Kotwali, District Bareilly, whereby
application of the accused - revisionists
under section 311 Cr.P.C. was rejected.

4. The facts of the case are that P.W.1
Smt. Amlawati, P.W.3 Neetu and P.W.5 Dr.
Harish
Chandra
were
examined
as
prosecution
witnesses
on
2.2.2007,
26.7.2007 and 24.4.2010 respectively, but
they could not be cross-examined on behalf
of the defence.

5. The application under section 311
Cr.P.C. was moved for recalling P.W.1, P.W.3
& P.W.5 for cross-examination on the ground
that these witnesses could not be crossexamined by the then defence counsel. The
accused persons are illiterate and poor and
have no knowledge of law. On 28.7.2010,
they appointed Sri M.A. Ansari, advocate as
their new counsel and thereafter it came to
light that these three witnesses could not be
cross-examined.

6. The aforesaid application under
section 311 Cr.P.C. was rejected by the trial
court on the ground that earlier, opportunity
for cross-examination was given to the
accused persons, which was not availed of by
them and there was no ground to summon
these
witnesses
for
cross-examination.
Hence, this revision.

Learned
A.G.A.
supported
the
impugned order.

7. Admittedly, P.W.1, P.W.3 & P.W.5
were examined by the prosecution and they
were not cross-examined at all by the then
learned counsel for the defence. Now, the
revisionists - accused have engaged a new
counsel and on perusal of the record, he
found that these three witnesses could not be
cross-examined at all and consequently he
moved an application under section 311
Cr.P.C. for this purpose. In view of the facts
that these three witnesses have not been
cross-examined at all, learned Addl. Sessions
Judge was not justified in rejecting the
application. The case against the revisionists
is under sections 328, 304 IPC, which is
punishable with life imprisonment. In such a
serious case, the right of cross-examination
of the accused should not be foreclosed
forever due to the fault of the counsel and
client should not be penalized for the fault of
the counsel. It was the duty of the trial court
to afford reasonable opportunity to the
accused for cross-examination of the
witnesses.

8. Even though the conduct of the
defence, during trial, has not been exemplary,
but if the counsel for the defence was not
cooperating in further progress of the case
and
deliberately
avoiding
the
crossexamination of the witnesses, the trial court
was always at liberty to cancel the bail of the
revisionists, but their right of crossexamination should not have been closed.

9. Thus, the order passed by Addl.
Sessions Judge cannot be sustained and is
liable to be set-aside, however, subject to
heavy cost.

10. Revision is allowed.

11. Impugned order dated 25.8.2010 is
set-aside. The revisionists are directed to
deposit a sum of Rs.3000/- before the trial
court within a period of three weeks from
1188 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
today along with a certified copy of this
order. On deposit of cost, learned Addl.
Sessions Judge shall fix a date for crossexamination of P.W.1 Smt. Amlawati, P.W.3
Neetu and P.W.5 Dr. Harish Chandra and on
such date these three witnesses shall be
summoned and the defence shall be given an
opportunity for cross-examination of these
three witnesses. However, no adjournment
shall be granted to the accused persons for
the purpose of cross-examination of P.W.1,
P.W.3 & P.W.5. Thereafter, the case shall
proceed in accordance with law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.11.2010

BEFORE
THE HON'BLE F.I. REBELLO, C.J.
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No.11111 of 1996

Smt. Sumitra Dhuliya

 ...Petitioner
Versus
The Director of Education and others

 ...Respondents

Counsel for the Petitioner:
Sri Shashi Kant Shukla
Sri Shashi Kant Gupta

Counsel for the Respondents:
C.S.C.

Constitution of India Art 226-Benefit of
academic session -Petitioner working as
Professor-in C.P.I.-whether entitled to a
benefit of academic session-held-'No'.

Held: Para 23

The questions posed by us, arising out
of
two
decisions
with
conflicting
opinions,
are
thus
answered
as
follows:-

"1.
The
Government
Order
dated
21.3.1984
granting
extension
of
service to the Teachers, Headmasters
and Principals of Government Colleges
and Government Degree Colleges, till
the end of the academic session i.e.
30th June of the year in which such
Teacher,
Headmaster
or
Principals
retire,
is
not
applicable
to
the
employees
including
Professors
working
in
Central
Paedological
Institute, Allahabad (CPI).

2. The judgment in Rajpati Pandey vs.
State of UP and others in Civil Misc. Writ
Petition
No.
20756
of
1990
dated
2.5.1997, was not correctly decided;

3. The Division Bench judgment in Sarju
Prasad vs. State of UP and others Civil
Misc. Writ Petition No. 896 of 1967
decided on 14.03.1997, lays down the
correct law;"
Case law discussed:
Civil Misc. Writ Petition No. 896 of 1967, Civil
Misc. Writ Petition No. 20756 of 1990, AIR
1964 SC 600, AIR 1957 SC 892, AIR 1962 All
328 (FB), AIR 1973 SC 1252, AIR 1965 SC
1567, State Bank of Bikaner and Jaipur and
others vs. Jag Mohan Lal 1989 Supp 1 SCC
221.

(Delivered by Hon'ble F.I. Rebello, C.J.)

1. Smt. Sumitra Dhuliya served on
the
post
of
Professor
in
Central
Paedological Institute, Allahabad ( in short,
'CPI, Allahabad), upto the age of 58 years,
and
retired
on
superannuation
on
31.3.1996.
She
claimed
benefit
of
Government
Order
dated
21.3.1984,
providing that those teachers, who are
engaged in teaching in Government
institutions, will be entitled to continue till
the end of the academic session i.e. 30th
June of the year during which they are
going to retire, if their date of birth falls
between 2nd July and 29th June of the
academic session. She was not given the