# Pintoo and others v. State of U.P

- **Citation:** (2010) 1 ILRA 155
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-02-19
- **Case number:** Criminal Misc. Bail Application No.22094 of 2009
- **Bench:** Amar Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pintoo-and-others-v-state-of-u-p-41525
- **Pages:** 7

## Headnote

Code of Criminal Procedure-Cancellation
of Bail-offence under Section 302/341
IPC-on
ground-main
prosecution
witness-turned hostile and facing Notice
u/s 181 I.P.C.-disclosed the reason of
threat to kill the son of such witness-trail
court rightly come to the conclusion for
cancellation of bail-approach made by
learned Trail Court in accordance with
verdict of Apex Court.

Held: Para 18 & 19

For all the aforesaid reasons I see no
illegality in the order of the learned
Additional Sessions Judge dated 29.7.09
cancelling the bail of the applicants. The
prayer for bail on behalf of the applicants
is also rejected. The trial is however
expedited. The Court concerned shall
conclude the trial within three months of
filing of the certified copy of this order.

Before parting I would like to record my
appreciation of the Additional Sessions
Judge/ FTC-2, Kaushambi , Dr. Bal
Mukund, who passed the impugned
order for his timely and pro-active
attempt at dispensing justice in the
wake of the determined bid of the
mischievous accused to subvert the
course of justice. With this objective on
the very date that the witness turned
hostile, the Court issued notice to the
witness as to why he should not be
punished
under
section
181
IPC,
encouraging the witness to come out
with the true reason for his hostility, and
thereafter by issuing notice to the
accused asking them to explain why
their
bail
be
not
cancelled,
and
eventually by cancelling their bail. This
appears
to
have
emboldened
the
subsequent witness PW-2 Ramraj to
affirm his earlier version in the First
Information
Report,
and
to
have
prevented him from also turning hostile.
The judge thereby fulfilled the mandate
of the Supreme Court in letter and spirit,
156 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
by not functioning as a passive tape
recorder and by affirmatively searching
for the truth.
Case law discussed:
AIR 2001 SC 330, AIR 1976 SC 202, AIR 1977
SC 170, (1977 Cri LJ 173, 2006 (1) U.P.
Criminal Ruling( SC) 519, AIR 2006 SUPREME
Court 1367, (1972 (1) All ER 1006), AIR 2000
SC 1851, 2004 (2) SCC 362, 2005 (8) SCC 21,
2004(7) SCC 528.

## Text

1 All] Pintoo and others V. State of U.P.
155
this writ petition, for putting in their
appearance. Steps may be taken within
ten days.

28. Further since the matter
pertaining to daily labourer Drivers
similarly
appointed
without
advertisement, is being considered in
Civil Misc. Writ Petition No. 7212 of
2010 (Diwakar Singh vs. Registrar
General, High Court of Judicature at
Allahabad), it would be appropriate that
this writ petition may also be tagged
along with the said writ petition so that all
issues pertaining to appointment in the
establishment of the High Court both at
Allahabad and Lucknow are adjudicated
under one common judgment.

29. Tag and list with Civil Misc.
Writ Petition No. 7212 of 2010 on
22.03.2010.

30. The records of the applications
of respondents no. 04 to 16 are being
returned to Shri Neeraj Upadhyaya,
counsel for the High Court.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.02.2010

BEFORE
THE HON'BLE AMAR SARAN, J.

Criminal Misc. Bail Application No.22094
of 2009

Pintoo and others

...Applicants
Versus
State of U.P.

 ...Opposite Party

Counsel for the Applicant:
Mr. L.K. Pandey
Mr. P.C. Pandey

Counsel for the Opposite Party:
Govt. Advocate

Code of Criminal Procedure-Cancellation
of Bail-offence under Section 302/341
IPC-on
ground-main
prosecution
witness-turned hostile and facing Notice
u/s 181 I.P.C.-disclosed the reason of
threat to kill the son of such witness-trail
court rightly come to the conclusion for
cancellation of bail-approach made by
learned Trail Court in accordance with
verdict of Apex Court.

Held: Para 18 & 19

For all the aforesaid reasons I see no
illegality in the order of the learned
Additional Sessions Judge dated 29.7.09
cancelling the bail of the applicants. The
prayer for bail on behalf of the applicants
is also rejected. The trial is however
expedited. The Court concerned shall
conclude the trial within three months of
filing of the certified copy of this order.

Before parting I would like to record my
appreciation of the Additional Sessions
Judge/ FTC-2, Kaushambi , Dr. Bal
Mukund, who passed the impugned
order for his timely and pro-active
attempt at dispensing justice in the
wake of the determined bid of the
mischievous accused to subvert the
course of justice. With this objective on
the very date that the witness turned
hostile, the Court issued notice to the
witness as to why he should not be
punished
under
section
181
IPC,
encouraging the witness to come out
with the true reason for his hostility, and
thereafter by issuing notice to the
accused asking them to explain why
their
bail
be
not
cancelled,
and
eventually by cancelling their bail. This
appears
to
have
emboldened
the
subsequent witness PW-2 Ramraj to
affirm his earlier version in the First
Information
Report,
and
to
have
prevented him from also turning hostile.
The judge thereby fulfilled the mandate
of the Supreme Court in letter and spirit,
156 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
by not functioning as a passive tape
recorder and by affirmatively searching
for the truth.
Case law discussed:
AIR 2001 SC 330, AIR 1976 SC 202, AIR 1977
SC 170, (1977 Cri LJ 173, 2006 (1) U.P.
Criminal Ruling( SC) 519, AIR 2006 SUPREME
Court 1367, (1972 (1) All ER 1006), AIR 2000
SC 1851, 2004 (2) SCC 362, 2005 (8) SCC 21,
2004(7) SCC 528.

(Delivered by Hon'ble Amar Saran, J.)

1. The prayer for bail has been made
on behalf of the applicants Pintoo, Ajai
and Indal Dhobi in case crime no.34/2002
under Section 302/341 I.P.C. P.S. Saini,
district Kaushambi after the bail of the
applicants was cancelled by an order
dated 29.7.2009 passed by the Additional
Session Judge/F.T.C.-2 in S.T.No.243 of
2002.

2. The brief facts of this case were
that on 17.1.2002 at about 8 p.m., the
informant Ram Raj, his brother Bhairo
Prasad, and nephews Suraj Pal and Ram
Kripal were going to the west of the
village for loading onions on a D.C.M.
vehicle. As soon as they reached near a
pond at the side of the road, the applicants
who were lying in wait with country made
pistols surrounded them. The accused
Pintoo cried out that Suraj Pal should not
be allowed to escape and he fired on Suraj
Pal with his country made pistol which hit
Suraj on his stomach causing him to fall
down. Then the brother-in-law (sala) of
Pintoo, namely the applicant Indal also
fired on him with his country made pistol,
but this fire missed. When the witnesses
tried to intervene, the accused Ajay
threatened them that if anyone intervened
in the matter, they would meet the same
fate as Suraj Pal. The FIR was registered
under section 307 I.P.C but later when
Suraj Pal died, the case was converted to
one under Section 302 and 307 I.P.C.

3. The accused persons were
however granted bail by the then Session
Judge by orders dated 1.2.2002 and
16.3.2002. The statement of PW1 Bhairo
Prasad was recorded on 21.11.2008 in
which he affirmed the version mentioned
in the F.I.R. But as his examination could
not be completed on that date hence the
recording of the evidence was postponed.
Further, examination of this witness could
only take place on 24.6.2009. On this date
when the counsel for the accused cross
examined him, PW1 Bhairo Prasad turned
hostile, and the prosecution was granted
permission to cross examine him.

4. As this witness had turned hostile
in his cross examination, the Court issued
a written notice to him on 24.6.09 itself to
show cause why he should not be
prosecuted for an offence under section
181 I.P.C. for having made contradictory
depositions on different dates.

5. In reply to the notice, Bhairo
Prasad gave a written reply on 8.7.2009 in
which he mentioned that he had earlier
deposed on 21.11.2008, but then the
accused persons Pintoo, Ajay and Indal
began to threaten him repeatedly, that if
he did not change his version in Court
they would murder his son Ram Kripal.
His son Ram Kripal used to go to Ajuwa
as he had a shop there for ironing clothes,
hence out of fear for the life of his son,
Bhairo Prasad claimed to have given a
wrong statement on 24.6.2009. He said
that
the
earlier
version
given
on
26.11.2008 was the correct version of the
incident and that he had given this version
without any pressure. In view of this he
prayed for withdrawal of the notice.
1 All] Pintoo and others V. State of U.P.
157
6. In the background of the reply
submitted by Bhairo Prasad PW1 to the
show cause notice, the Court issued a
notice to the accused applicants in
exercise of powers under section 439(2)
Cr.P.C as to why the bail granted to them
be not cancelled. The accused applicants
gave a joint written reply on 15.7.2009 in
which they pleaded that the claim of
Bhairo Prasad for changing his version at
the instance of the accused persons was
false. He had voluntarily given the new
statement. He had never set up the version
of being threatened by the accused until
he was called upon to give a reply to the
notice under section 181 I.P.C. The
subsequent witness Raja Ram P.W. 2, the
informant had also not deposed that the
accused persons had given any threat to
the witnesses that unless they resile from
their earlier testimony, they would kill the
son of Bhairo Prasad and that the
applicants had never abused the bail
granted to them.

7. The Session Judge however after
examining the matter, recorded a finding
in his order dated 29.7.2009 that the
accused applicants had extended grave
threats to the witness that his other son
would meet the same fate as Suraj Pal. In
such circumstances no witness could
freely depose in Court without fear or
pressure and the contention of the accused
that PW1 Bhairo Prasad had given this
explanation because he was facing a
prosecution for giving false testimony in
view of the notice under Section 181
I.P.C did not appear to be correct.
Significantly it was pointed out that after
the notice had been issued to the accused
persons as to why their bail should not be
cancelled because they were tampering
with the witnesses, when the witness PW
2 Ram Raj appeared in Court for his
deposition he has fully supported the
F.I.R. version in his examination in chief
on 8.7.09. It was further observed in the
impugned order that if the accused
applicants had not threatened Bhairo
Prasad PW1 that they would kill his other
son Ram Kripal then he would definitely
not have changed his version. In these
circumstances the Trial Court withdrew
the notice under section 181 I.P.C. issued
to the witness and cancelled the bail of the
accused applicants and directed that the
applicants be taken into custody. This
order is under challenge in the present
case.

8. It is argued by the learned counsel
for the applicants that as the notice dated
24.6.2009 called upon the witness Bhairo
Prasad to show cause why he should not
be prosecuted under section 181 I.P.C. for
giving a false testimony during the earlier
examination on 26.11.08, the Court was
debarred from holding in its order dated
29.7.09 that the earlier version dated
26.11.08 and not the latter statement dated
24.6.09 gave out the correct version.

9. In my view it is not material
whether
the
Court
gave
a
notice
considering the first statement or the later
testimony dated 26.4.09 to be false,
because
when
a
witness
gives
contradictory versions in his testimony
then a per se conclusion can be reached
by the Court that one of the versions is
false. It is for the Court to finally evaluate
at the trial as to which of the two versions,
the initial version consistent with the FIR
or the changed version that a witness
deposes to after turning hostile gives the
true picture, and there is no fetter on the
Court accepting any part of the testimony
of a witness that it considers reliable.
158 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
10. In Gura Singh v. State of
Rajasthan, AIR 2001 SC 330 it has been
observed in paragraph 11:

"11.
There
appears
to
be
misconception regarding the effect on the
testimony of a witness declared hostile. It
is a misconceived notion that merely
because a witness is declared hostile his
entire evidence should be excluded or
rendered unworthy of consideration. This
Court in Bhagwan Singh v. State of
Haryana, AIR 1976 SC 202 : (1976 Cri
LJ 203), held that merely because the
Court gave permission to the Public
Prosecutor to cross-examine his own
witness describing him as hostile witness
does not completely efface his evidence.
The evidence remains admissible in the
trial and there is no legal bar to base
conviction upon the testimony of such
witness. In Rabindra Kumar Dey v. State
of Orissa, AIR 1977 SC 170 : (1977 Cri
LJ 173) , it was observed that by giving
permission to cross-examine nothing
adverse to the credit of the witness is
decided and the witness does not become
unreliable only by his declaration as
hostile. Merely on this ground his whole
testimony cannot be excluded from
consideration. In a criminal trial where a
prosecution witness is cross-examined
and contradicted with the leave of the
Court by the party calling him for
evidence cannot, as a matter of general
rule, be treated as washed off the record
altogether. It is for the Court of fact to
consider in each case whether as a result
of
such
cross-examination
and
contradiction
the
witness
stands
discredited or can still be believed in
regard to any part of his testimony. In
appropriate cases the Court can rely upon
the part of testimony of such witness if
that part of the deposition is found to be
creditworthy." (Emphasis added)

11. The learned counsel for the
applicants has also contended that the
witness had resiled from his statement
voluntarily and only when he faced
impending prosecution under section 181
IPC, he resiled from his later version, and
re-affirmed his earlier version. This
contention
does
not
appear
to
be
acceptable. In my view if the Court was
of the opinion that ordinarily the father or
uncle would not resile from his version
mentioned in the F.I.R. and earlier
deposition in the Court, unless some
strong pressure was brought to bear on
him, the Court cannot be faulted for this
reasoning. In this back ground if the Court
is of the opinion that no useful purpose
would be served in directing prosecution
of a witness for an offence under section
181 IPC or any allied provision, and
decides to discharge such a witness and
instead to issue notice to the accused as to
why their bail be not cancelled, there is no
illegality in the said direction.

12. Another submission of the
learned counsel was that as the witness
had deposed on oath on being cross
examined on 24.6.2009 that the applicants
were innocent and that he had denied that
he had colluded with the accused on being
cross examined by the prosecution. This
version should have been preferred to the
version contained in his reply dated
8.7.2009 to the show cause notice that he
had resiled from the earlier version on
account of the threat of the accusedapplicants. Reliance was placed in this
connection by the learned counsel for the
applicant
on
the
case
of
Zahira
Habibullah Sheikh and another Vs. State
of Gujarat and others reported in 2006 (1)
1 All] Pintoo and others V. State of U.P.
159
U.P.
Criminal
Ruling(
SC)
519,
particularly to some passages therein for
keeping the stream of justice pure and
transparent. Learned counsel for the
applicant submits that in that case Zahira
Habibullah Sheikh who had changed her
version was punished by the Apex Court
and was not discharged.

13. I may mention that the Apex
Court had been constrained to prosecute
and punish Zahira Sheikh because she had
been changing her version at different
stages, and had caused great anguish to
the Court in a case in which no witnesses
were coming forward to depose to the true
facts as to how the grave crime had been
committed. The present case is clearly
distinguishable
on
facts.
Here,
immediately after the show cause notice
was issued to the witness PW-1 Bhairo
Prasad as to why he should not be
punished under section 181 IPC for giving
conflicting versions, he had immediately
made a clean breast of the matter in his
reply dated 8.7.09 that because he had
been subjected to undue pressure as
threats were extended to him that his
other son would also meet the same fate
as the deceased Surajpal, that he had
given the incorrect version on 24.6.2009
and that his earlier version 26.11.08
brought out the correct position.

14. It is significant that the learned
AGA also relied upon the case of Zahira
Habibullah Sheikh which emphasizes that
in order to keep the stream of justice pure
and unsullied the Court must not function
like a tape recorder and it must proactively search for the truth. Wide powers
have been given for this purpose also
under
section
311
Cr.P.C,
which
empowers the Court to summon a witness
or to recall any person in attendance and
to re-examine him. Section 165 of the
Evidence Act also confers wide powers
on the Court to question a witness or to
order the production of any person that
the Judge considers necessary. It was to
abide by the spirit and import of the
decision of the Apex Court in Zahira
Sheikh's case that the learned trial Judge
had issued a notice to Bhairo Prasad as to
why he should not be prosecuted, on the
same date that the witness had turned
hostile, whereupon the witness submitted
a reply to the notice on 8.7.09 as to how
on account of threats to the life of his son,
he had been forced to turn hostile. The
Court thereafter issued notice to the
accused as to why their bail be not
cancelled in such circumstances. The
result of the notice to the accused was that
the next witness, PW 2 Raja Ram was
prevented from turning hostile.

In this connection it has been sagely
observed in paragraph 22 in "Zahira
Habibullah
Sheikh
v.
State
of
Gujarat"AIR 2006 SUPREME Court 1367
:

"It was significantly said that law, to
be just and fair has to be seen devoid of
flaw. It has to keep promise to justice and
it cannot stay petrified and sit nonchallantly. The law should not be seen to
sit by limply, while those who defy it go
free and those who seek its protection
loose hope (See Jennison v. Backer (1972
(1) All ER 1006). Increasingly, people are
believing as observed by SALMON quoted
by Diogenes Laertius in "Lives of the
Philosophers" laws are like spiders' webs:
if some light or powerless thing falls into
them, it is caught, but a bigger one can
break through and get away". Jonathan
Swift, in his "Essay on the Faculties of the
Mind" said in similar lines: "Laws are
160 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
like cobwebs, which may catch small flies,
but let wasps and hornets break through".

15. Because of these observations in
Zahira Sheikh, that Courts are required
not to sit limply but to pro-actively search
for truth, I find no merit in another
submission of the learned counsel for the
applicant that as the prosecution had not
given any application for getting the bail
cancelled or for declaring the witness
hostile nor had the witness himself given
any statement on oath that some pressure
had been made to bear on him, the Court
was not justified in issuing a notice to the
witness why he should not be prosecuted
under section 181 IPC or for proceeding
against the accused for cancelling their
bail. Such a complaint is rarely likely to
be made by a witness whose life or the
life of whose dear one is under threat
from the accused, as presently there is no
effective system of witness protection in
place. Learned AGA has also rightly
placed reliance on the case of R.
Rathinam Vs. State and another, AIR
2000 SC 1851 that not only are the State,
the complainant or the witness entitled to
move an application for cancellation of
the bail, but an application for this
purpose can be moved under section
439(2) Cr.P.C by any third party and even
suo motu by the Court, if it is satisfied
that the accused persons were trying to
tamper with the witnesses and the Court
can also in such circumstances pass an
order cancelling the bail of the accused.

16. The importance of the Court not
shutting its eyes to reality and being
proactive in the dispensation of justice has
been emphasized by Fali S. Nariman, in
his pithy little book, "India's Legal
System, Can it be Saved?" Nariman
contrasts the architect's impression of two
stone images carved out on towers of the
Bombay High Court. The Southern tower
carries the stone image of Mercy, the
British (Victorian) hand maiden of justice
who is shown as blind, "performing her
task without fear or favour and does not
go by the appearance of the parties
arraigned before her." He however
prefers the Indian ideal of justice with her
flowing robes, a sword in her right hand
and a pair of scales in the left, and the
blind folds removed portrayed on the
Northern tower. "With clear eyes and a
clear head, she sees things with unbiased
vision, looking intently at the ever-tilting
scales in her left hand. The tip of the
sword is resting on the ground near her
feet, so that after considering the
evidence, she can wield the sword swiftly
and strike the guilty party: being cleareyed she cannot by mistake or accident
hurt the innocent one!"

17. In fact in Mubarak Dawood
Shaikh v. State of Maharashtra: 2004 (2)
SCC 362, State of U.P. v. Amarmani
Tripathi:2005 (8) SCC 21, and Kalyan
Chandra Sarkar v. Rajesh Ranjan:
2004(7) SCC 528 it was observed that
even when there is a prima facie
apprehension of the likelihood of an
attempt to derail the course of justice by
tampering with the witnesses, the Court
would be fully justified in cancelling the
bail. Here as we have seen the eye
witness, had actually turned hostile, and it
was not only a case of an apprehension
that an attempt would be made to tamper
with the witnesses.

18. For all the aforesaid reasons I
see no illegality in the order of the learned
Additional Sessions Judge dated 29.7.09
cancelling the bail of the applicants. The
prayer for bail on behalf of the applicants
1 All] Shera V. Union of India and others
161
is also rejected. The trial is however
expedited. The Court concerned shall
conclude the trial within three months of
filing of the certified copy of this order.

19. Before parting I would like to
record my appreciation of the Additional
Sessions Judge/ FTC-2, Kaushambi, Dr.
Bal Mukund, who passed the impugned
order for his timely and pro-active attempt
at dispensing justice in the wake of the
determined
bid of the
mischievous
accused to subvert the course of justice.
With this objective on the very date that
the witness turned hostile, the Court
issued notice to the witness as to why he
should not be punished under section 181
IPC, encouraging the witness to come out
with the true reason for his hostility, and
thereafter by issuing notice to the accused
asking them to explain why their bail be
not
cancelled,
and
eventually
by
cancelling their bail. This appears to have
emboldened the subsequent witness PW-2
Ramraj to affirm his earlier version in the
First Information Report, and to have
prevented him from also turning hostile.
The judge thereby fulfilled the mandate of
the Supreme Court in letter and spirit, by
not functioning as a passive tape recorder
and by affirmatively searching for the
truth.

20. In view of the aforesaid remarks
about the Judge, let a copy of the
judgment be placed before the Inspecting
Judge of Kaushambi.

21. Let the copy of the order also be
sent to the Judicial Training and Research
Institute and the Legal Services Authority
for communication to the concerned
judicial authorities within a month as a
guidance on how to act in a timely and
proactive manner when dealing with
situations where attempts are being made
to brow beat witnesses and to compel
them to turn hostile, as hostility of
witnesses by threats or inducements is
becoming the bane of our judicial system.

22. The copy of this order should be
sent to the Additional Sessions Judge/
FTC-2, Kaushambi within a week for
compliance.

The Registrar is also directed to
circulate copies of the judgment before all
the
subordinate
Courts
within
two
months.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.02.2010

BEFORE
THE HON'BLE IMTIYAZ MURTAZA, J.
THE HON'BLE S.S. TIWARI, J.

Civil Misc. Habeas Corpus Writ Petition
No. 27725 of 2009

Shera

...Petitioner
Versus
Union of India Thru' Secy. and others

 ...Respondent

Counsel for the Petitioner:
Sri Sudhakar Shukla

Counsel for the Respondents:
A.S.G.I., G.A.

Constitution of India Art. 226-Habeas
Corpus-detention order-inordinate delay
in disposal of representation-delay of 40
days-explanation the dealing clerk on
medical leave-can not be plasible -and
justified
explanation
in
such
vitally
important of fundamental right-order
quashed.

Held: Para 16