# Khoob Chand v. State of U.P. and others - **Citation:** (2010) 3 ILRA 1185 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2010-11-01 - **Case number:** Criminal Appeal No. 4699 of 2010 - **Bench:** Ravindra Singh - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/khoob-chand-v-state-of-u-p-and-others-41744 - **Pages:** 2 ## 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 3 All] Khoob Chand V. State of U.P. and others 1185 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 01.11.2010 BEFORE THE HON'BLE RAVINDRA SINGH, J. Criminal Appeal No. 4699 of 2010 Khoob Chand ...Petitioner Versus State of U.P. and others ...Respondent Counsel for the Appellant: Sri Atul Srivastava Counsel for the Opposite Party: A.G.A. Code of Criminal Procedure Code Section 372-appeal order of acquittal passed by C.J.M.-maintainable before the Session Judge-not before High Court-liberty granted to approach before competent court. Held: Para 4 The proviso confers the right to victim to prefer the appeal against any order passed by the court acquitting the accused or convicting for lesser offence for imposing inadequate compensation and such appeal shall lie to the Court to which an appeal ordinarily lies against he order of conviction of such court. In present case the order of acquittal has been passed by the court of learned IIIA.C.J.M. Gautambudh Nagar, if the order of conviction is passed by such 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. (Delivered by Hon'ble Ravindra Singh, J.) 1. Heard Sri Atul Srivastava, learned counsel for the appellant and learned A.G.A. for the State of U.P. 2. This appeal has been preferred under the proviso of section 372 Cr.P.C. against the judgement and order dated 22.5.2010 passed by the learned A.C.J.M.-III, Gautam Budh Nagar in Criminal Case No. 955 of 2010 by which the O.P. No. 2 to 9 have been acquitted for the offence punishable under section 147, 452, 323, 324 and 325 IPC. 3. This appeal has been preferred by the appellant Khoob Chand who had lodged the FIR of the present case at P.S. Dadari on 28.1.1986 at 12.45 P.M. in case crime No. 30-A of 1986 under the proviso of section 372 Cr.P.C. It has been inserted by the Cr.P.C. (Amendment) Act (2008) (Act No. 5 of 2009). The proviso of section 372 Cr.P.C. reads as under: "Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lies to the Court to which an appeal ordinarily lies against the order of conviction of such Court." 4. The proviso confers the right to victim to prefer the appeal against any order passed by the court acquitting the accused or convicting for lesser offence for imposing inadequate compensation and such appeal shall lie to the Court to which an appeal ordinarily lies against he order of conviction of such court. In present case the order of acquittal has been passed by the court of learned III-A.C.J.M. Gautambudh Nagar, if the order of conviction is passed by such 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