# Mehboob Pandey v. State of U.P. & Anr

- **Citation:** (2023) 4 ILRA 1299
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-20
- **Case number:** Application U/S 482. No. 37035 of 2022
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mehboob-pandey-v-state-of-u-p-anr-49870
- **Pages:** 7

## Headnote

A. Criminal Law - Application under
Section
482
CrPC
-
order
rejection
application under Section 311 CrPC to
recall witnesses- direct trial court to recall
witnesses
for
cross
examination
for
proper and fair adjudication- trial under
sections 147, 148, 149, 302 and 120-B
IPC- earlier order of the trial judge
allowing the application for recall of
witnesses ignored.

B. Scheme of examination of witnesses-
Chapter X Section 137 of the Indian
Evidence Act, 1872- opportunity of cross
examination not provided to the accusedviolation of natural justice- Section 311
CrPC-
incorporated
to
avoid
such
situation- power vested in the provision to
be exercised- achieving a just decision of
the case- trial court committed manifest
error in not considering the earlier order.
Impugned
order
quashed-Application
allowed. (Paras 6 to 8, 20)
HELD:
From the perusal of the impugned order it is
very much clear that the learned trial court did
not peruse the Order Sheet that so far as the
1300 INDIAN LAW REPORTS ALLAHABAD SERIES
cross examination of the PW-1 to PW-3 is
concerned, applicants application has already
been considered by the then learned trial judge
on 9.10.2012 in view of Section 231 (2) Cr.P.C.
It has also not been considered that for an
accused who is in jail for such a long period, it is
very much difficult to defend himself if his family
members and the counsel are not cooperative
with him. The scheme of the examination of the
witnesses has been enumerated in chapter - X
of The Indian Evidence Act and according to
Section 137 of the Act, the witness would be
called for his examination in chief, cross
examination and re-examination if the party
calling him wants his re-examination. There is
no provision in Indian Evidence Act that if on
any particular date, the witness could not be
cross examined by the opposite party, he would
not be again recalled for cross examination.
However, if the witness could not be crossexamined in spite of sufficient opportunity
provided by the Court, cross examination may
be closed or if the accused refuses to cross
examine the witness, the cross examination
might be closed. Certainly, the closer of the
cross-examination might be opened if due to
some unavoidable circumstance, the witness
could not be cross examined on behalf of the
accused. This fact should be in the mind of the
learned trial judge that if an opportunity for
cross examination is not provided to the
accused, it would be violation of natural justice.
It is the basic principle of natural justice that an
opportunity must be provided to the accused for
cross examination and hearing. In case the
witness has not been examined, the evidence of
the examination in chief would be considered in
toto against the accused and it would remain
un-rebutted and this situation would be a
mockery of justice due to mere technicalities.
(Para 6)

From the above, it is very much clear that there
are two parts 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. (Para 8)

Application allowed. (E-14)

List of Cases cited:

## Text

4 All. Mehboob Pandey Vs. State of U.P. & Anr.
1299
up
for
trial
after
conclusion
of
investigation. This is not to say that the
gang-chart betrays any violation of the
Rules. A perusal of the material on record
and
the
gang-chart
shows
due
and
independent application of mind by both
the recommending and the approving
Authorities.
In
connection
with
the
contention advanced by the learned Senior
Counsel for the applicant on this score, the
holding of the Division Bench in Ambuj
Parag Dubey (supra) is again of relevance,
where it is observed:

"36. Rule 17 and 18 would have
to be read together. Gang chart has to be
sent in the prescribed Form No. 1. The
endorsement to be made by each of the
authorities have also been specified in
Rule 16. The rule itself prescribes and
mandates a printed Form. Rule 17 merely
mandates that the competent authority
while approving the gang chart should
not be swayed by the recommendation of
the police authorities mechanically but
should satisfy himself independently that
the grounds for prosecution is made out.
The satisfaction at that stage is subjective
and does not rest upon any evidence. The
competent authority has to satisfy that the
materials placed with the gang chart
calls for prosecution. The stage of
collecting evidence follows thereafter.
The scope of judicial review is miniscule,
the accused cannot challenge the FIR
without challenging the gang chart. The
question as to whether the antisocial
activities of the proposed accused is that
of a gang or gangster is a matter of
investigation."

35. In view of what has been said
above, this Court does not find any good
ground
to
quash
the
impugned
proceedings.

36. This application fails and is
dismissed.
----------
(2023) 4 ILRA 1299
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.01.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application U/S 482. No. 37035 of 2022

Mehboob Pandey ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Mumtaz Ali, Sri Shad Khan

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Application under
Section
482
CrPC
-
order
rejection
application under Section 311 CrPC to
recall witnesses- direct trial court to recall
witnesses
for
cross
examination
for
proper and fair adjudication- trial under
sections 147, 148, 149, 302 and 120-B
IPC- earlier order of the trial judge
allowing the application for recall of
witnesses ignored.

B. Scheme of examination of witnesses-
Chapter X Section 137 of the Indian
Evidence Act, 1872- opportunity of cross
examination not provided to the accusedviolation of natural justice- Section 311
CrPC-
incorporated
to
avoid
such
situation- power vested in the provision to
be exercised- achieving a just decision of
the case- trial court committed manifest
error in not considering the earlier order.
Impugned
order
quashed-Application
allowed. (Paras 6 to 8, 20)
HELD:
From the perusal of the impugned order it is
very much clear that the learned trial court did
not peruse the Order Sheet that so far as the
1300 INDIAN LAW REPORTS ALLAHABAD SERIES
cross examination of the PW-1 to PW-3 is
concerned, applicants application has already
been considered by the then learned trial judge
on 9.10.2012 in view of Section 231 (2) Cr.P.C.
It has also not been considered that for an
accused who is in jail for such a long period, it is
very much difficult to defend himself if his family
members and the counsel are not cooperative
with him. The scheme of the examination of the
witnesses has been enumerated in chapter - X
of The Indian Evidence Act and according to
Section 137 of the Act, the witness would be
called for his examination in chief, cross
examination and re-examination if the party
calling him wants his re-examination. There is
no provision in Indian Evidence Act that if on
any particular date, the witness could not be
cross examined by the opposite party, he would
not be again recalled for cross examination.
However, if the witness could not be crossexamined in spite of sufficient opportunity
provided by the Court, cross examination may
be closed or if the accused refuses to cross
examine the witness, the cross examination
might be closed. Certainly, the closer of the
cross-examination might be opened if due to
some unavoidable circumstance, the witness
could not be cross examined on behalf of the
accused. This fact should be in the mind of the
learned trial judge that if an opportunity for
cross examination is not provided to the
accused, it would be violation of natural justice.
It is the basic principle of natural justice that an
opportunity must be provided to the accused for
cross examination and hearing. In case the
witness has not been examined, the evidence of
the examination in chief would be considered in
toto against the accused and it would remain
un-rebutted and this situation would be a
mockery of justice due to mere technicalities.
(Para 6)

From the above, it is very much clear that there
are two parts 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. (Para 8)

Application allowed. (E-14)

List of Cases cited:

1. Raja Ram Prasad Yadav Vs St. of Bih. & anr.
A.I.R 2013 SC 3081

2. R.B. Mithani Vs St. of Mah., A.I.R. 1971,
Supreme Court 1630

3.Shailendra Kumar Vs St. of Bih., A.I.R 2002
(Supreme Court) 270

4.Ramasami Vs Sriniwasan 1987 (3) Crimes 89
Madras

5.Rama Paswan Vs St. of Jhharkhand, 2007 Crl.
L.J. 2750

6. Popat Lal & ors. Vs St. of Mah., 2002, Crl.L.J.
794

7. V.N Patil Vs Niranjan Kumar & ors., (2021) 3
SCC 661

8.Bhagwan Singh Vs St. of M.P, 2002 (44) ACC
1112 (SC)

9.Raj Kishor Jha Vs St. of Bih. 2003 (47) ACC
1068 (SC)

10. Chittarlal Vs St. of Raj., (2003) 6 SCC
397

11. Shri Bhagwan Vs St. of Raj., (2001) 6 SCC
296

12. Satnam Singh Vs St. of Raj., (2000) 1 SCC
662 others

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Sri Shad Khan holding brief
of Sri Mumtaz Ali, learned counsel for the
applicant, Sri Pankaj Kumar Tripathi,
learned A.G.A. For the State and perused
the record.
4 All. Mehboob Pandey Vs. State of U.P. & Anr.
1301

2. This application has been moved
for quashing the order dated 20.10.2022
passed by A.S.J Court No. 2 Bulandshahr
whereby he rejected the application under
section 311 Cr.P.C for recalling the
witnesses PW-2, PW-3, PW-6, PW-8 and
also to direct the learned trial court to recall
the
aforesaid
witnesses
for
cross
examination
for
proper
and
fair
adjudication of S.T. No. 1401 of 2010
arising out of crime no. 203 of 2009, u/s
147, 148, 149, 302 and 120-B I.P.C Police
Station Sikandrabad District - Bulandshahr.

3. In brief, facts of the case are that
during the course of the trial the applicant
has been in jail since 20.12.2010. Seven
Session trial cases are consolidated together
and leading case is S.T. No. 853 of 2009,
the applicant is a very poor person. Due to
non payment of fees, local counsel did not
cross examine PW-2 Rizwan Ansari, PW-3
S.I Hari Singh, PW-6 Mohsin and PW-8
I.O
Virendra
Singh.
The
applicant
somehow recently engaged Mr. Krishn
Kumar Saxena advocate as his counsel who
moved an application u/s 311 Cr.P.C on
19.10.2022 and requested the trial court to
recall the aforesaid witnesses for crossexamination on behalf of the applicant.

4. Prior to that an application no.
98A1 had been moved on behalf of the
applicant for recall of the witnesses PW-1
to PW-3 for cross examination and the then
learned trial judge vide order dated
9.10.2012 had allowed the application with
the direction that the application shall
remain deferred U/s 231 (2) Cr.P.C.
Despite such direction, the said witnesses
were
never
recalled
for
their
cross
examination by the trial court. The cross
examination of the aforesaid witnesses is
very significant for proper and fair
adjudication.
The
learned
trial
court
without applying judicial mind and without
perusing the previous order rejected the
recall application in a routine manner.
Hence, it is expedient for the ends of justice
for invocation of inherent powers U/s 482
Cr.P.C by this court.

5. All the papers referred in the
petition are annexed with the affidavit.

6. From the perusal of the impugned
order it is very much clear that the learned
trial court did not peruse the Order Sheet
that so far as the cross examination of the
PW-1 to PW-3 is concerned, applicants
application has already been considered by
the then learned trial judge on 9.10.2012 in
view of Section 231 (2) Cr.P.C. It has also
not been considered that for an accused
who is in jail for such a long period, it is
very much difficult to defend himself if his
family members and the counsel are not
cooperative with him. The scheme of the
examination of the witnesses has been
enumerated in chapter - X of The Indian
Evidence Act and according to Section 137
of the Act, the witness would be called for
his examination in chief, cross examination
and re-examination if the party calling him
wants his re-examination. There is no
provision in Indian Evidence Act that if on
any particular date, the witness could not
be cross examined by the opposite party, he
would not be again recalled for cross
examination. However, if the witness could
not be cross-examined in spite of sufficient
opportunity provided by the Court, cross
examination may be closed or if the
accused refuses to cross examine the
witness, the cross examination might be
closed. Certainly, the closer of the crossexamination might be opened if due to
some
unavoidable
circumstance,
the
witness could not be cross examined on
behalf of the accused. This fact should be
1302 INDIAN LAW REPORTS ALLAHABAD SERIES
in the mind of the learned trial judge that if
an opportunity for cross examination is not
provided to the accused, it would be
violation of natural justice. It is the basic
principle
of
natural
justice
that
an
opportunity must be provided to the
accused for cross examination and hearing.
In case the witness has not been examined,
the evidence of the examination in chief
would be considered in toto against the
accused and it would remain un-rebutted
and this situation would be a mockery of
justice due to mere technicalities.

7. To avoid such circumstances
Section 311 Cr.P.C has been incorporated
in the code of criminal procedure which is
as under :

"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."

8. 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.

9. 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 3 of 8 view of the court to be
essential for the just decision of the case.

10. 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,
4 All. Mehboob Pandey Vs. State of U.P. & Anr.
1303
appears in the view of the court to be
essential for the just decision of the case.

11. In R.B. Mithani Vs. State of
Maharashtra, A.I.R. 1971, Supreme Court
1630, the Hon'ble Supreme Court has held
that additional evidence summoned must be
necessary not because, it would be
impossible to pronounce judgement but
also because there would be failure of
justice without it. Though the power must
be exercised sparingly and only in suitable
case but once such action is justified, there
is no restriction on the kinds of evidence,
which may be received. It may be formal or
substantial in nature.

12. In State of Haryana Vs. Ram
Prasad 2006 Cr.L.J. 1001, the Punjab &
Haryana High Court held that where the
examination and re-examination of the
witness is essential for the just decision of
the case, it is obligatory of the Court to
summon such a witness.

13. In Shailendra Kumar Vs. State of
Bihar, A.I.R 2002 (Supreme Court) 270, it
is held that if there is any negligence,
latches or mistake by not examining
material witness, the Courts function to
render just decision by examining such
witness at any stage is not, in any way
impaired.

14. In Ramasami Vs. Sriniwasan
1987 (3) Crimes 89 Madras, it is held that
the criminal court is not just umpire to deal
only the material brought by the parties
before it. The court has to play an active
role in the administration of criminal
jurisprudence. Though, it is not normal
duty of the court to collect evidence, in
cases where justice requires, the Court has
power to further inquire into the matter in
order to ascertain the truth.

15. In Rama Paswan Vs. State of
Jhharkhand, 2007 Crl. L.J. 2750, the
Hon'ble Supreme Court has held that it
would not be improper, the exercise of the
power of the Court to summon a witness
under the Section merely because the
evidence
supports
the
case
of
the
prosecution and not that of the accused.
The Section is a general Section, which
applies to all proceedings, inquiries and
trials under the Court and empowers the
Magistrate to issue summons to any
witness at any stage of such proceedings,
trial or inquiry.

16. The applicant-accused is of the
view that by allowing the application under
Section 311 Cr.P.C and by summoning the
witnesses and keeping the documentary
evidence on record, the accused-applicant
have been prejudiced. In this respect in
Popat
Lal
&
Ors.
Vs.
State
of
Maharashtra, 2002, Crl.L.J. 794, the
Bombay High Court has held that Section
311 Cr.P.C. is not granted only for the
benefit of the accused and it will not be
improper exercise of power of the Court, if
the Court summons a witness only because
the evidence will support the prosecution
case and not the defense case.

17. The averment of para 14 to 17 in
V.N Patil Vs. Niranjan Kumar and others,
(2021) 3 SCC 661, are relevant hence they
are reproduced as under :-

"14.
The
object
underlying
Section 311 CrPC is that there may not be
failure of justice on account of mistake of
either party in bringing the valuable
evidence on record or leaving ambiguity in
the statements of the witnesses examined
from either side. The determinative factor
is whether it is essential to the just decision
of the case. The significant expression that
1304 INDIAN LAW REPORTS ALLAHABAD SERIES
occurs is "at any stage of any inquiry or
trial or other proceeding under this Code".
It is, however, to be borne in mind that the
discretionary
power
conferred
under
Section 311 CrPC has to be exercised
judiciously, as it is always said "wider the
power, greater is the necessity of caution
while exercise of judicious discretion".

15. The principles related to the
exercise of the power under Section 311
CrPC have been well settled by this Court
in Vijay Kumar v. State of U.P., (2011) 8
SCC 136 : (2011) 3 SCC (Cri) 371 : (2012)
1 SCC (L&S) 240 : (SCC p. 141, para 17)

"17. Though Section 311 confers
vast discretion upon the court and is
expressed in the widest possible terms, the
discretionary power under the said section
can be invoked only for the ends of justice.
Discretionary power should be exercised
consistently with the provisions of the Code
and the principles of criminal law. The
discretionary
power
conferred
under
Section 311 has to be exercised judicially
for reasons stated by the court and not
arbitrarily or capriciously. Before directing
the learrned Special Judge to examine Smt
Ruchi Saxena as a court witness the High
Court did not examine the reasons assigned
by the learned Special Judge as to why it
was not necessary to examine her as a
court witness and has given the impugned
direction without assigning any reason."

16. This principle has been
further reiterated in Mannan Shaikh v.
State of W.B., (2014) 13 SCC 59 : (2014) 5
SCC (Cri) 547 and thereafter in Ratanlal v.
Prahlad Jat, (2017) 9 SCC 340 : (2017) 3
SCC (Cri) 729 and Swapan Kumar
Chatterjee v. CBI, (2019) 14 SCC 328 :
(2019) 4 SCC (Cri) 839 . The relevant
paragraphs of Swapan Kumar Chatterjee v.
CBI, (2019) 14 SCC 328 : (2019) 4 SCC
(Cri) 839 are as under: Swapan Kumar
Chatterjee v. CBI, (2019) 14 SCC 328 :
(2019) 4 SCC (Cri) 839, SCC p. 331, paras
10-11).

"10. The first part of this section
which
is
permissive
gives
purely
discretionary authority to the criminal
court and enables it at any stage of inquiry,
trial or other proceedings under the Code
to act in one of the three ways, namely, (i)
to summon any person as a witness; or (ii)
to examine any person in attendance,
though not summoned as a witness; or (iii)
to recall and re- examine any person
already examined. The second part, which
is mandatory, imposes an obligation on the
court (i) to summon and examine, or (ii) to
recall and re-examine any such person if
his evidence appears to be essential to the
just decision of the case.

11. It is well settled that the
power conferred under Section 311 should
be invoked by the court only to meet the
ends of justice. The power is to be
exercised only for strong and valid reasons
and it should be exercised with great
caution and circumspection. The court has
vide power under this section to even recall
witnesses for re- examination or further
examination, necessary in the interest of
justice, but the same has to be exercised
after taking into consideration the facts and
circumstances of each case. The power
under this provision shall not be exercised
if the court is of the view that the
application has been filed as an abuse of
the process of law."

17. The aim of every court is to
discover the truth. Section 311 CrPC is one
of many such provisions which strengthen
the arms of a court in its effort to unearth
4 All. Manisha Kumar Vs. State of U.P. & Ors.
1305
the truth by procedure sanctioned by law.
At the same time, the discretionary power
vested under Section 311 CrPC has to be
exercised judiciously for strong and valid
reasons
and
with
caution
and
circumspection to meet the ends of justice."

18. In the aforesaid case, the appeal
was allowed by the apex court and the
order of High Court was set aside and order
of the trial court regarding summoning of
the witnesses and production of document
was restored.

19. Mentioning the name of all
witnesses in FIR or in statements u/s 161
CrPC is not a requirement of law. Such
witnesses can also be examined by
prosecution with the permission of the
court. Non-mentioning of the name of any
witness in the FIR would not justify
rejection of evidence of the eye-witness. In
para 13 of Bhagwan Singh Vs. State of
M.P, 2002 (44) ACC 1112 (SC) it was held
that that there is no requirement of law for
mentioning the names of all the witnesses
in the FIR, the object of which is only to set
the criminal law in motion. In the cited case
Kiran (PW 7) herself was injured and being
the niece of Hari Ram (deceased), had no
reason to involve innocent persons in the
commission of the crime. In addition to the
above citation in Raj Kishor Jha Vs. State
of Bihar, 2003 (47) ACC 1068 (SC),
Chittarlal Vs. State of Rajasthan, (2003)
6 SCC 397, Shri Bhagwan Vs. State of
Rajasthan, (2001) 6 SCC 296, Satnam
Singh Vs. State of Rajasthan, (2000) 1
SCC 662, the Apex Court has held similar
principles of law.

20. On the basis of above discussion
this Court comes to the conclusion that the
trial Court has committed manifest error in
not considering the previous order dated
9.10.2012 and it has also been failed in
considering the recall application in right
prospective hence, this application is liable
to be allowed.

ORDER

This application is allowed and
the impugned order dated 19.10.2022 is
quashed and the application under section
311 Cr.P.C is allowed. The learned trial
court is directed to summon the witness
PW-2, PW-3, PW-6 and PW-8 for their
cross examination by and on behalf of the
applicant Mahboob Pandey. It is also
directed that the learned trial court shall
provide sufficient opportunity to the
applicant for cross examination for the
aforesaid witnesses.
----------
(2023) 4 ILRA 1305
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.03.2023

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Writ-A No. 4821 of 2023

Manisha Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ms. Shalini Mishra, Sri Sanjay Kumar Mishra

Counsel for the Respondents:
C.S.C., Sri Ravi Prakash Pandey

A. Service Law -claim for the payment of
gratuity and pension of deceased husband
of
petitioner
rejected-husband
not
working against a sanctioned post-service
never regularised despite working for his
entire life with the department-petitioner
entitled
for
pension
under
U.
P.