# Raghunath v. State of U.P.& Anr

- **Citation:** Application U/S 482 No. 43298 of 2019
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-11
- **Case number:** Application U/S 482 No. 43298 of 2019
- **Bench:** Rajul Bhargava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raghunath-v-state-of-u-p-anr-46209
- **Pages:** 5

## Headnote

Criminal law-Code of Criminal Procedure -
Section 311-Application to recall of PW-2
for cross-examination rejected-for three
years prosecution did not adduced any
evidence-after
three
years
statement
recorded and on same day opportunity to
cross examination closed due to non
pressence
of
lawyer-impugned
order
quashed-Application allowed. (E-9)

Held, Considering the above, I am of the view
that if the defence is not given proper
opportunity to cross-examine PW-2-prosecutrix,
who is the victim of the case, it will cause a
serious prejudice to defence case as her
1746 INDIAN LAW REPORTS ALLAHABAD SERIES
testimony would go unrebutted. It is a
fundamental right of an accused to have fair
trial as envisaged under Article 21 of the
Constitution and if the impugned order is not
quashed then the main object of affording fair
trial to accused in the spirit of life and liberty
shall be greatly jeopardized. The powers to
recall a witness under Section 311 Cr.P.C. is a
very wide and could be exercised for the just
decision of a case. The Section 311 Cr.P.C.
empowers the Courts to recall material witness
at any stage of enquiry or trial, if his/her
evidence appears to it to be essential to the
arrival at the just decision of a case. (Para 12)
(E-9)

Cases Cited:

## Text

3-5 All. Raghunath Vs. State of U.P. & Anr.
1745

However,
in
view
of
the
entirety of facts and circumstances of
the case, it is directed that in case the
applicants
appear
and
surrender
before the court below within 60 days
from today and apply for bail, their
prayer for bail shall be considered and
decided in view of the settled law laid
by this Court in the case of Amrawati
and another Vs. State of U.P. reported
in 2004 (57) ALR 290 as well as
judgement passed by Hon'ble Apex
Court reported in 2009 (3) ADJ 322
(SC) Lal Kamlendra Pratap Singh Vs.
State of U.P.

With the aforesaid directions,
this application is finally disposed of.

Till then no coercive action
shall be taken against the applicants.

However,
in
case,
the
applicants do not appears before the
court
below
within
the
aforesaid
period, coercive action shall be taken
against them.

It is made clear that the
applicants will not be granted any
further
time
by
this
Court
for
surrendering before the court below as
directed above."

14. However, it is observed that if the
bail has not been obtained as yet, the
accused may appear before the court below
and apply for bail within two months from
today. The court below shall make an
endeavour to decide the bail application on
the same day, if possible, keeping in view
the observations made by the Court in the
Full Bench decision of Amrawati and
another Vs. State of U.P. 2004 (57) ALR
290 and also in view of the decision given
by the Hon'ble Supreme Court in the case
of Lal Kamlendra Pratap Singh Vs. State
of U.P. 2009 (3) ADJ 322 (SC).

15. In the aforesaid period or till the
date of appearance of the accused in the
court below, whichever is earlier, no
coercive measures shall be taken or given
effect to.

16. With the aforesaid observations,
this application is finally disposed off.
----------
(2020)03-05ILR A1745
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.02.2020

BEFORE
THE HON'BLE RAJUL BHARGAVA, J.

Application U/S 482 No. 43298 of 2019

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

Counsel for the Applicant:
Sri Vinay Kumar, Sri Sanjeev Kumar
Sharma

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

Criminal law-Code of Criminal Procedure -
Section 311-Application to recall of PW-2
for cross-examination rejected-for three
years prosecution did not adduced any
evidence-after
three
years
statement
recorded and on same day opportunity to
cross examination closed due to non
pressence
of
lawyer-impugned
order
quashed-Application allowed. (E-9)

Held, Considering the above, I am of the view
that if the defence is not given proper
opportunity to cross-examine PW-2-prosecutrix,
who is the victim of the case, it will cause a
serious prejudice to defence case as her
1746 INDIAN LAW REPORTS ALLAHABAD SERIES
testimony would go unrebutted. It is a
fundamental right of an accused to have fair
trial as envisaged under Article 21 of the
Constitution and if the impugned order is not
quashed then the main object of affording fair
trial to accused in the spirit of life and liberty
shall be greatly jeopardized. The powers to
recall a witness under Section 311 Cr.P.C. is a
very wide and could be exercised for the just
decision of a case. The Section 311 Cr.P.C.
empowers the Courts to recall material witness
at any stage of enquiry or trial, if his/her
evidence appears to it to be essential to the
arrival at the just decision of a case. (Para 12)
(E-9)

Cases Cited:

1. Rafiq & ors. Vs. Munshilal and others AIR
1981 SC 1400

2. The Secretary, Department of Horticulture,
Chandigarh & ors. Vs. Raghu Raj AIR 2009 SC
514

(Delivered by Hon'ble Rajul Bhargava, J.)

1. Heard Sri Vinay Kumar Advocate,
Sri
S.K.
Sharma
Advocate,
learned
counsels for the applicant, learned A.G.A.
for the State and perused the materials and
documents on record.

2. The present application under
Section 482 Cr.P.C has been filed with a
prayer to quash the order dated 04.10.2019
passed by the learned Special Judge
(POCSO)/Additional
Session
Judge,
Kanpur Nagar, in Session trial No. 9 of
2013, arising out of Case Crime No. 466 of
2013, under Sections 376, 504, 506, 406
I.P.C., P.S. Kalyanpur, District- Kanpur
Nagar, whereby the application under
Section 311 Cr.P.C filed by the applicant to
recall
PW-2,
prosecutrix
for
crossexamination has been dismissed.

3. The applicant is an accused under
Sections 376, 504, 506 and 406 I.P.C,
presently facing trial. The statement under
Section 164 Cr.P.C of PW-2, prosecutrix
was
recorded
on
02.11.2015
and
thereafter on account of non-presence
of the prosecutrix and mostly at the
instance of prosecution; the case got
continuously
adjourned
from
19.12.2015 to 06.10.2018. Thereafter on
03.11.2018 the prosecution proved the
statement of the prosecutrix, however,
since the counsel of the applicant was
not
present
for
cross-examination
neither any adjournment application
was filed by the defence counsel, as
such the concerned court below closed
the opportunity of defence to crossexamine the PW-2, prosecutrix vide
same
order
dated
03.11.2018.
Subsequently,
on
20.12.2018
an
application under Section 311 Cr.P.C.
was filed, for recall of PW-2 for crossexamination, which has been rejected
under
the
impugned
order
dated
04.10.2019.

4. It has been argued by learned
counsel for the applicant that the
applicant and other accused are facing a
grave charge of commission of rape and
the court below denied the opportunity
of
cross-examination
of
the
star
witness, thus, the testimony of the
prosecutrix would remain unrebutted
creating grave injustice and prejudice to
the applicant. It is further argued that in
fact the applicant has been attending the
court regularly barring few occasions as
is
evident
from
the
order-sheet,
however, the record would demonstrate
that
the
prosecution
itself
was
proceeding in a lackadaisical manner
and on the date when impugned order
was passed there was some negligence
and remissness on the part of his lawyer
for which the applicant cannot be made
3-5 All. Raghunath Vs. State of U.P. & Anr.
1747
to suffer and therefore the closure of an
opportunity to cross-examine by the trial
court that the defence counsel willingly did
not
appear
to
cross-examine
PW-2,
prosecutrix is unfounded. The opportunity
to recall PW-2 was moved on 20.11.2018
itself but the same reamin pending and was
decided by the impugned order dated
4.10.2019.

5. After carefully perusing the ordersheet on record, I find that the examinationin-chief of the prosecutrix, PW-2 was
recorded on 2.11.2015, however, as the
statement recorded under Section 164
Cr.P.C. was not on record and the same
could not be proved the prosecution sought
adjournment and on the request of the
prosecution the case was adjourned. Ordersheet also reflects that for about three years
the prosecution did not adduce any
evidence and produced the prosecutrix on
3.11.2018. It appears that her statement
recorded under Section 164 Cr.P.C. was
proved by the prosecution and on the very
same day as the counsel for the applicant
did not appear for cross-examination the
court closed the opportunity to crossexamine the prosecutrix. Learned counsel
has further argued that till date the evidence
of prosecution is going on and therefore the
applicant may be provided at least an
opportunity
to
cross-examine
PW-2,
prosecutrix for the just decision of the case
and set-aside the impugned order.

6. In my considered opinion, not
affording an opportunity, particularly in view of
the fact that the lawyer of the applicant was not
available to cross-examine the prosecutrix
before the concerned Court below on the date
fixed, is not justified.

7. In the case of Rafiq and others vs.
Munshilal and others AIR 1981 SC 1400, the
Hon'ble Supreme Court dealt with a matter
where negligence on part of a counsel had
caused adverse consequences to the litigant.
The Hon'ble Supreme Court in para 3 of the
Judgement, held as under: -

"3.The disturbing feature of the
case is that under our present adversary
legal system where the parties generally
appear
through
their
advocates,
the
obligation of the parties is to select his
advocate, brief him, pay the fees demanded
by him and then trust the learned advocate
to do the rest of the things. The party may
be a villager or may belong to a rural area
and may have no knowledge of the court's
procedure. After engaging a lawyer, the
party may remain supremely confident that
the lawyer will look after his interest. At the
time of the hearing of the appeal, the
personal appearance of the party is not
only not required but hardly useful.
Therefore, the party having done everything
in his power to effectively participate in the
proceedings can rest assured that he has
neither to go to the High Court to inquire
as to what is happening in the High Court
with regard to his appeal nor is he to act as
a watchdog of the advocate that the latter
appears in the matter when it is listed. It is
no part of his job. Mr. A.K. Sanghi stated
that a practice has grown up in the High
Court of Allahabad amongst the lawyers
that they remain absent when they do not
like a particular Bench. Maybe he is better
informed on this matter. Ignorance in this
behalf is our bliss. Even if we do not put
our seal of imprimatur on the alleged
practice by dismissing this matter which
may discourage such a tendency, would it
not bring justice delivery system into
disrepute. What is the fault of the party who
having done everything in his power and
expected of him would suffer because of the
default of his advocate. If we reject this
1748 INDIAN LAW REPORTS ALLAHABAD SERIES
appeal, as Mr. A.K. Sanghi invited us to do,
the only one who would suffer would not be
the lawyer who did not appear but the
party whose interest he represented. The
problem that agitates us is whether it is
proper that the party should suffer for the
inaction,
deliberate
omission,
or
misdemeanour of his agent. The answer
obviously is in the negative. May be that
the learned advocate absented himself
deliberately or intentionally. We have no
material for ascertaining that aspect of the
matter. We say nothing more on that aspect
of the matter. However, we cannot be a
party to an innocent party suffering
injustice
merely
because
his
chosen
advocate defaulted. Therefore, we allow
this appeal, set aside the order of the High
Court both dismissing the appeal and
refusing to recall that order. We direct that
the appeal be restored to its original
number in the High Court and be disposed
of according to law."

8. Likewise, in the case of The
Secretary, Department of Horticulture,
Chandigarh and Ors. Vs. Raghu Raj AIR
2009 SC 514, the Hon'ble Apex Court
considered the responsibility of a counsel
and consequences of non-appearance of a
counsel or any default on part of a counsel
on a litigant. Such default of counsel
cannot visit the party with any penal
consequences. The Hon'ble Apex Court in
para 27 and 28 of the Judgement, held as
under: -

"27. Now, it cannot be gainsaid
that an advocate has no right to remain
absent from the Court when the case of his
client comes up for hearing. He is duty
bound to attend the case in Court or to
make an alternative arrangement. Nonappearance in Court without `sufficient
cause' cannot be excused. Such absence is
not only unfair to the client of the advocate
but also unfair and discourteous to the
Court and can never be countenanced.

28. At the same time, however,
when a party engages an advocate who is
expected to appear at the time of hearing
but fails to so appear, normally, a party
should not suffer on account of default or
non-appearance of the advocate. "

9. It is further pertinent to note here
that in view of the fact that the applicant is
being tried for a heinous offence under
Section 376 I.P.C., as such the crossexamination of PW-2, who is the victim, is
absolutely essential to arrive at just
decision of the case and the impugned
order rejecting the applicant's application
under Section 311 Cr.P.C.

10. Considering the above, I am of the
view that if the defence is not given proper
opportunity
to
cross-examine
PW-2prosecutrix, who is the victim of the case, it
will cause a serious prejudice to defence
case as her testimony would go unrebutted.
It is a fundamental right of an accused to
have fair trial as envisaged under Article 21
of the Constitution and if the impugned
order is not quashed then the main object of
affording fair trial to accused in the spirit of
life and liberty shall be greatly jeopardized.
The powers to recall a witness under
Section 311 Cr.P.C. is a very wide and
could be exercised for the just decision of a
case. The Section 311 Cr.P.C. empowers
the Courts to recall material witness at any
stage of enquiry or trial, if his/her evidence
appears to it to be essential to the arrival at
the just decision of a case.

11. Considering the facts and
circumstances of the case, I am of the view
that the ends of justice would be served, if
3-5 All. Anand Prakash Singh Vs. State of U.P. & Anr.
1749
an opportunity is granted to the applicant to
cross-examine PW-2-prosecutrix. In view
of it, the learned Judge is directed to recall
PW-2, prosecutrix by fixing a date within
three weeks and ensure her presence
through concerned police station. It is made
clear
that
on
appearance
of
PW-2,
prosecutrix, the defence shall positively
cross-examine
her
and
no
further
opportunity shall be given, unless the trial
court under some exigency deems it fit to
adjourn the case for her cross-examination.

12. In view of aforesaid, the
impugned order dated 04.10.2019 cannot
be sustained and is hereby quashed and the
application is accordingly allowed.

13. However, considering the long
pendency of trial, the trial Court is hereby
directed to expedite the aforesaid trial and
conclude the same in accordance with law,
considering the provisions of Section 309
Cr.P.C,
without
granting
unnecessary
adjournments to either of the parties as
expeditiously as possible preferably within
a period of four months from the date of
production of a certified copy of this Order,
if there is no legal impediment.

14. Office is directed to communicate
the order to the court concerned forthwith.
----------
(2020)03-05ILR A1749
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.01.2020

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 Cr.P.C. No. 45858 of 2019

Anand Prakash Singh ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties
Counsel for the Applicant:
Sri Sunil Dubey

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

Criminal law-Code of Criminal Proceduresection 311-Application u/s 311 Cr.P.C.
rejected-prayed
for
questioning
PW-1
over photographs which could not be filed
on
record
by
previous
counsel
for
unknown
reason-photographs
depicted
that PW-1 was present-photographs never
placed
on
record
till
date
of
the
Application-no question arises for any
cross-examination
over
it-Application
dismissed. (E-9)

Cases cited:

1. St. of A.P. v. Gaurishetty Mahesh, JT 2010 (6)
SC 588: (2010) 6 SCALE 767: 2010 Cr. LJ 3844

2. Hamida v. Rashid, (2008) 1 SCC 474

3. Monica Kumar v. St. of U.P., (2008) 8 SCC
781

4. Popular Muthiah v. State, Represented by
Inspector of Police, (2006) 7 SCC 296,

5. Dhanlakshmi v. R.Prasana Kumar, (1990) Cr
LJ 320 (DB): AIR 1990 SC 494

6. St. of Bihar v. Murad Ali Khan, (1989) Cr LJ
1005: AIR 1989 SC 1

(Delivered by Hon'ble Ram Krishna Gautam, J.)

1. This Application, under Section
482 of Code of Criminal Procedure, 1973
(Hereinafter in short referred as 'Cr.P.C.'),
has been filed by Anand Prakash Singh,
applicant, with a prayer for setting aside
impugned, dated 15.2.2019, passed by the
Additional Chief Judicial Magistrate, Court
no.7, Varanasi, in Case No.1571 of 2013,
State vs. Anand Prakash Singh, of Police
Station-Adampura,
District
Varanasi,
pending in the court of Additional Chief