# Kallu & Ors v. State of U.P. & Anr

- **Citation:** (2025) 11 ILRA 460
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-11-10
- **Case number:** Application U/S 528 BNSS. No. 42526 of 2025
- **Bench:** Ms. Nand Prabha Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kallu-ors-v-state-of-u-p-anr-52869
- **Pages:** 3

## Headnote

impugned order rejecting Application u/s 311
Cr.P.C.

Headnotes
Code of Criminal procedure-sec 311/ The
Bharatiya
Nagarik

## Text

460 INDIAN LAW REPORTS ALLAHABAD SERIES
living a happy married life for the last
several years and the opposite party
no.2/first informant has also entered into
settlement agreement before the Mediation
Centre of this Court, and if the proceedings
of the Trial Court is not quashed by this
Court, the applicant no.1 and the victim and
their family members may sustain legal
injury. The ratio laid down by the Hon'ble
Apex
Court
in
the
aforementioned
judgments i.e. Shriram Urav (supra),
Mahesh Mukund Patel (supra), K.
Dhandapani (supra) and Mafat Lal
(supra) is squarely applicable to the facts
of the present case as the applicant no.1 has
solemnized marriage with the prosecutrix
and the parties are happily living together
with their baby boy and this Court cannot
ignore the said fact.

22. In view of the discussion made
herein above, the present application
succeeds and is liable to be allowed. It is
accordingly allowed.

23. The entire proceedings of Sessions
Trial No.187 of 2017 (State vs. Wasiullah
and Others), arising out of Case Crime
No.64 of 2017, under sections 363, 366,
504, 506 of the IPC and Section 7/8 of the
The POCSO Act against the applicant no.1
and under Sections 504 and 506 IPC
against the applicant nos.2 & 3, at Police
Station Bakhira, District Sant Kabir Nagar
as well as impugned Chargesheet dated
16.03.2017 and Cognizance/Summoning
order dated 23.03.2017, pending in the
court of learned Special Court, POCSO
Act, District -Sant Kabir Nagar, are hereby
quashed.

24. No order as to costs.
----------
(2025) 11 ILRA 460
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.11.2025

BEFORE

THE HON'BLE MS. NAND PRABHA SHUKLA, J.

Application U/S 528 BNSS. No. 42526 of 2025

Kallu & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Hari Keshav

Counsel for the Opposite Parties:
G.A.

Issue for consideration
Scope of sec 245 of Code of Criminal Procedure.

Headnotes
Code of Criminal Procedure-Section 244,
245- trial has proceeded as warrant trial
instituted otherwise than on a police report-
right of cross-examination is a very salutary
right-accused would have to be given an
opportunity to cross-examine the witnesses-
who have been offered at the stage of Section
244(1) Cr.P.C-the accused can show, by way of
the cross-examination that there is no justifiable
ground against him for facing the trial - the
prosecution would have to offer some evidenceimpugned order set aside-matter remittedApplication disposed. (E-9)

Case Law Cited
Ajoy Kumar Ghose v. State of Jharkhand and
another AIR 2009 SC 2282

List of Acts
Code of Criminal Procedure

List of Keywords
Right of cross-examination, no evidence under
Section 244 was recorded, right of the accused
to cross-examine the witnesses, at the stage of
Section 244(1) Cr.P.C.

Appearances of parties
11 All. Kallu & Ors. Vs. State of U.P. & Anr.
461
Counsel for Applicant(s) : Hari Keshav, Counsel
for Opposite Party(s) : G.A.

(Delivered by Hon'ble Ms. Nand Prabha
Shukla, J.)

1.Heard learned counsel for the
applicants and learned AGA for the State
and perused the record.

2.The present application under
Section 528 BNSS has been filed with a
prayer to quash the impugned order
dated 25.08.2025 passed by the Judicial
Magistrate, Court No.2, Varanasi as
well as the entire criminal proceeding
of
Complaint
Case
No.
113/2010
(Rambachan v. Uditnarayan and others)
under Sections 463, 467, 468 and 120B
IPC,
Police
Station-Cantt,
District
Varanasi pending in the Court of
Judicial
Magistrate,
Court
No.2,
Varanasi.

3.It has been submitted by learned
counsel for the applicants that the
applicant Nos. 1, 2 and 3 were summoned
to face the trial under Sections 466, 467,
468 IPC and applicant No. 4 were
summoned under Section 120B IPC. The
applicants
moved
the
discharge
application dated 27.03.2023 which was
rejected on technical ground.

4.It has been submitted by learned
counsel for the applicants that in the instant
matter, the trial has proceeded as warrant
trial instituted otherwise than on a police
report. Section 245(2) of the Cr.P.C.,
provides that nothing in the section shall be
deemed to prevent a Magistrate from
discharging the accused at any previous
stage of the case, if, for the reasons to be
recorded by such Magistrate, he considers
the charge to be groundless.

5. It has also been submitted that trial
court did not consider the aforesaid facts
and
circumstances
and
rejected
the
application moved by the applicant solely
on the ground that no evidence under
Section 244 was recorded and neither the
applicants had sought the bail nor any
evidence of the complainant was recorded
nor date was fixed for framing of the
charge.

6.Learned counsel for the applicants
has relied upon the paragraph 26 of the
judgment passed by Hon'ble Apex Court in
Ajoy Kumar Ghose v. State of Jharkhand
and another AIR 2009 SC 2282, which
reads as under:

"26. There is only one judgment
of the Andhra Pradesh High Court in 4206,
which has taken the view that the
Magistrate can frame the charge even
without any evidence having been taken
under Section 244 Cr.P.C.

We do not think that it is a
correct expression of law, as the right of
the accused to cross-examine the witnesses
at the stage of Section 244(1) Cr.P.C.
would be completely lost, if the view is
taken that even without the evidence, a
charge can be framed under Section 246(1)
Cr.P.C. The right of cross-examination is a
very salutary right and the accused would
have to be given an opportunity to crossexamine the witnesses, who have been
offered at the stage of Section 244(1)
Cr.P.C. The accused can show, by way of
the cross-examination, that there is no
justifiable ground against him for facing
the trial and for that purpose, the
prosecution would have to offer some
evidence. While interpreting this Section,
the prejudice likely to be caused to the
accused in his losing an opportunity to
462 INDIAN LAW REPORTS ALLAHABAD SERIES
show to the Court that he is not liable to
face the trial on account of there being
no evidence against him, cannot be
ignored. Unfortunately, the earlier cases
of the same Court, which we have
referred to above, were brought to the
notice of the Learned Judge. Again, the
Learned Judge has not considered the
true impact of the clause "at any
previous stage of the case", which could
only mean that even with a single
witness, the Magistrate could proceed to
frame the charge."

7.
Considering
the
facts
and
circumstances, the order dated 27.03.2025
is hereby set aside and the matter is
remitted back to the Court concerned to
reconsider the matter and pass a fresh order
in the light of the judgment as discussed
above as expeditiously as possible, without
granting unnecessary adjournments, if there
is no other legal impediment. With the
aforesaid observations, the application is
disposed of.
---------
(2025) 11 ILRA 462
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.11.2025

BEFORE

THE HON'BLE VIVEK KUMAR SINGH, J.

Application U/S 528 BNSS. No. 42622 of 2025

Satendra ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Rakesh Singh

Counsel for the Opposite Parties:
G.A.

Issue for consideration
Matter pertains to examine the validity of
impugned order rejecting Application u/s 311
Cr.P.C.

Headnotes
Code of Criminal procedure-sec 311/ The
Bharatiya
Nagarik
Suraksha
Sanhita,
2023-sec.348-Application preferred by the
accused applicant to recall PW-1, PW-2 and PW3 for cross examination- witnesses appeared
and examination-in- chief was also recorded-
but the counsel for the applicant did not appear
for cross examination of the witnesses-once the
opportunity for cross- examination was closed-
the application for recalling of the witnesses was
moved after a period of more than 14 year-
moved apparently to cause delay in conclusion
of the trial-rightly been rejected- recall of a
witness already examined should not be a
matter of course -Application rejected. (E-9)

Case Law Cited
1. Mohd. Khalid Versus State of West Bengal,
(2002) 7 SCC 334;
2. Hanuman Prasad (Supra), Natasha Singh vs.
CBI, (2013) 5 SCC 741:(2013) 4 SCC (Cri)
828:2013 SCC OnLine SC 444;
3. Rajaram Prasad Yadav vs. State of Bihar and
another, AIR 2013 SC 3081;
4. State (NCT of Delhi) v. Shiv Kumar Yadav,
(2016) 2 SCC 402;
5. State of Haryana vs. Ram Mehar and others,
(2016) 8 SCC 762;
6. Swapan Kumar Chatterjee vs. Central Bureau
of Investigation, (2019) 14 SCC 328;
7. Varsha Garg vs. State of Madhya Pradesh and
Others, 2022 SCC OnLine SC 986
8. Application under Section 482 Cr.P.C. No. 274
of 2022 (Ram Nayak Singh vs. State of U.P. &
Another)
9. State (NCT of Delhi) vs. Shiv Kumar Yadav :
(2016) 2 SCC 402
10. Ratanlal vs. Prahlad Jat, (2017) 9 SCC 340

List of Acts
1. Code of Criminal Procedure, 1973
2. The Bharatiya Nagarik Suraksha Sanhita,
2023

List of Keywords