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

- **Citation:** (2016) 1 ILRA 78
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-01-05
- **Case number:** Application U/S 482 No. 37202 of 2015
- **Bench:** Karuna Nand Bajpayee
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rahul-anr-v-state-of-u-p-anr-43462
- **Pages:** 4

## Headnote

Cr.P.C. Section 482-Trail Court closed the
evidence-as
the
defence
counsel
withdraw himself from conducting the
case-consequently the witness-could not
be cross examined-on request to engage
another counsel- 2days adjournment
given-certainly a very short time for new
counsel to prepare himself to cross
examined the witness-which resulted
complete miscarriage of justice, principle
of Natural Justice and constitutional
right of fair trail stand defeated-order
quashed with necessary direction.
Held: Para-5
It also does not appear to be a disputed
fact that the counsel who had been
conducting the trial was no more
counsel in the case because of his own
refusal or because of the withdrawal of
the instructions by the applicants. In
such a situation, the opportunity of two
days time to engage the new counsel to
cross examine the witness and conduct
the trial does not appear to be an
adequate opportunity. It cannot be said
with any justification that in such a
short time even if a new counsel was
engaged he could have prepared the
case and do justice with the trial of
murder. In such circumstances, in order
to arrive at the ends of justice and in
order to meet and fulfill the vital
requirements of equity and in order to
ensure a fair trial, this Court feels
inclined to direct that the trial court
should fix some date and call the
aforesaid witness to be cross examined
by the accused.

## Text

78
 INDIAN LAW REPORTS ALLAHABAD SERIES
reference to any fresh ground brought out
subsequently and a ground not adopted or
expressed in the impugned administrative
order, cannot be sought to be raised to
justify its validity.
13. In such view of the matter, in
our considered opinion, the impugned
order
being
cryptic
and
without
containing reason on which the decision is
predicated, is not liable to be sustained.
As a result, the writ petition succeeds and
stands allowed.
14.
The impugned order dated 15th
March, 2014 is hereby set aside. The
respondent authorities are directed to
reconsider the application of the petitioner
for grant of No Objection Certificate afresh
in accordance with the provisions of the
Policy dated 18th May, 2011 by passing a
reasoned order expeditiously, preferably
within a period of six weeks from the date of
production of a certified copy of this order.
15. However, in the facts and
circumstances, there shall be no orders as
to costs.
-------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.01.2016
BEFORE
THE HON'BLE KARUNA NAND BAJPAYEE, J.
Application U/S 482 No. 37202 of 2015
Rahul & Anr.
 ...Applicants
Versus
State of U.P. & Anr.
...Opp. Parties
Counsel for the Appellants:
Anoop Trivedi
Counsel for the Opp. Parties:
G.A.
Cr.P.C. Section 482-Trail Court closed the
evidence-as
the
defence
counsel
withdraw himself from conducting the
case-consequently the witness-could not
be cross examined-on request to engage
another counsel- 2days adjournment
given-certainly a very short time for new
counsel to prepare himself to cross
examined the witness-which resulted
complete miscarriage of justice, principle
of Natural Justice and constitutional
right of fair trail stand defeated-order
quashed with necessary direction.
Held: Para-5
It also does not appear to be a disputed
fact that the counsel who had been
conducting the trial was no more
counsel in the case because of his own
refusal or because of the withdrawal of
the instructions by the applicants. In
such a situation, the opportunity of two
days time to engage the new counsel to
cross examine the witness and conduct
the trial does not appear to be an
adequate opportunity. It cannot be said
with any justification that in such a
short time even if a new counsel was
engaged he could have prepared the
case and do justice with the trial of
murder. In such circumstances, in order
to arrive at the ends of justice and in
order to meet and fulfill the vital
requirements of equity and in order to
ensure a fair trial, this Court feels
inclined to direct that the trial court
should fix some date and call the
aforesaid witness to be cross examined
by the accused.
(Delivered by Hon'ble Karuna Nand
Bajpayee, J.)
1.
The application u/s 482 Cr.P.C.
has been filed for setting aside the order
dated 16.12.2015 passed by the Sessions
Judge, Meerut by which the Application
No. 47 Kha, under Section 311 Cr.P.C.
has been rejected by the court below
denying the opportunity to the applicants
to
cross
examine
P.W.11
Meenu.
1 All. Rahul & Anr. Vs. State of U.P. & Anr.
79
2. Heard applicants' counsel as well
as learned AGA and perused the record.
3. Submission of counsel for the
applicants is that PW-11 Meenu has been
examined in-chief but as the counsel who
was conducting the trial has returned the
brief therefore, the applicants (accused)
had to engage another counsel for the
cross examination of the witnesses. It was
further pointed out that though the
examination-in-chief
was
done
on
8.12.2015 but when the adjournment was
sought on that date because of the
inability of the counsel to continue the
trial, another date 10.12.2015 was fixed
for the cross examination immediately
after two days. Further submission is that
this period of adjournment was very short.
As it was a murder trial the rights and
liability of the applicants, who were
facing the trial as accused, must be
adjudicated upon after the witnesses were
cross examined. Otherwise it is bound to
cast serious deleterious/prejudicial effect
against the interest of the applicants and
would go to the extent of infringing upon
the fairness of the trial. But on the next
date i.e. 10.12.2015 when adjournment
was again sought the court refused to
grant the same and closed the evidence. It
was also submitted that it is not a case or
a
matter
in
which
the
repeated
adjournments might have been sought on
behalf of the applicants for cross
examination nor is it a case in which the
counsel can be said to have deliberately
resorted to any delaying tactics and was
under any false
pretext or pretence
indulging in any such exercise which may
be said to be unfair or deliberate. In fact,
the witness could be procured for cross
examination only after enormous efforts
were done by the trial court in that regard
and she could be brought to be examined
as PW-11 after ten prosecution witnesses
had already been examined. The emphasis
was laid by counsel who tried to elaborate
and demonstrate that the facts and
circumstances of the case are such that the
applicants cannot be accused of any such
delaying tactics which could have justly
impelled the court to close the evidence
and deprive the accused from their most
valuable right of cross examination.
Counsel for the applicant has tried to
show that the adjournment was sought in
a bonafide manner because the counsel
himself
had
refused
to
continue
conducting the trial itself. It was in that
background that another counsel had got
to be engaged. Submission is that in fact
even if a new counsel could have been
engaged within two days then also it
would have been an insufficient period of
time for a new counsel to prepare the case
and to do justice with the trial of murder.
Further submission is that in fact whether
the accused applicants withdrew their
instructions from the counsel or the
counsel himself refused to continue with
the trial is not of much significance in the
facts and circumstances of the case and in
any view of the matter, if a new counsel
had
to
be
engaged,
a
sufficient
opportunity should have been provided to
the accused to do justice with their cause.
It
was
further
submitted
that
the
applicants have absolutely no intention to
delay the proceedings of the trial or to
prolong the matter and if an opportunity
shall be given to them to cross examine
the witness, it shall be availed on the first
date and no further adjournment shall be
sought by them. It was next submitted that
if the PW-11 Meenu goes uncross
examined, the prejudicial effect cast on
the rights of the applicants shall result in
complete miscarriage of justice and
principles of natural justice and principles
80
 INDIAN LAW REPORTS ALLAHABAD SERIES
of equity and constitutional right to have a
fair trial, all shall stand defeated. The
contention is that the accused ought to be
granted a reasonable opportunity to cross
examine the witness which has already
been denied to them by closing the
evidence after recording the examinationin-chief of the witness.
4. Ordinarily this Court would have
proceeded with the matter after issuing
notice to the opposite party no. 2 but in that
situation the proceedings of the trial had to
be stayed. In the wake of heavy pendency of
the cases, there is hardly any likelihood for
this matter to be taken up in any near future.
Such a course would be very detrimental to
the interests of the prosecution. In such a
situation, when the facts and circumstances
of the case also appear to be of such nature
that the Court feels that the matter may be
disposed off on the basis of record taking
the assistance of learned A.G.A., the Court
deems it fit to proceed with the matter and
pass order after hearing the learned A.G.A.
and counsel for the applicants. The Court
has preferred to adopt this course more so
because the hub of the controversy involves
nothing except the appreciation of the wider
principles of fairness or to say the first
principles of justice.
5. It appears that PW-11 Smt.
Meenu was not making herself available
in the court because she apprehended
danger to her life and it was only after
making enormous efforts that the trial
court could ensure her presence for the
purpose of cross examination in the court.
The difficulty in procuring her attendance
and the delay caused because of her non
examination
seems
to
have
cast
significant effect on the mind of the trial
court and for prompting it to close the
evidence as the court for obvious reasons
did not want to take any chance to let the
witness slip again during the trial. It also
appears that the additional reason to take
a strict view in the matter was that there
was a direction of High Court to expedite
the proceedings of the trial. Apparently
the order passed by the court below is
such which cannot be very seriously
assailed on the ground of any illegality or
impropriety and the view taken by the
court below can also not be castigated for
being perverse. But despite this fact, when
this Court takes an over all broader view
of the matter and keeps in perspective the
imperative concept of fair trial, in the
view of the Court it appears necessary
that the trial should be finally decided and
adjudicated upon, not on the basis of
untested testimony of the witnesses, but
after their testimonies have been tested on
the anvil of cross examination. Such a
course would not only enable the court to
evaluate the evidenciary value and its
worth more adequately but there shall also
not be left any chance for either of the
parties to assail the final verdict of the
trial court on the ground that the judgment
was based on unscrutinized testimonies
which
were
never
vetted
on
the
touchstone of cross examination. Off
course, it goes without saying that
whenever the court feels that the
adjournment sought by a party is not
based on reasonable grounds or is actually
having an oblique motive behind the same
to delay the trial or to otherwise defeat the
ends of justice, it is very much within the
powers of the court not to grant the
adjournment and close the evidence. But
the present matter does not display any
such circumstances on the basis of which
this Court may come to the conclusion
that the adjournment was sought for any
of such reasons. The first date on which
the witness was available was 8.12.2015
1 All. Smt. Geeta Dixit & Ors. Vs. The Secy. Govt. of U.P. & Ors.
81
and the next date was fixed as 10.12.2015.
It also does not appear to be a disputed fact
that the counsel who had been conducting
the trial was no more counsel in the case
because of his own refusal or because of the
withdrawal of the instructions by the
applicants.
In such a situation, the
opportunity of two days time to engage the
new counsel to cross examine the witness
and conduct the trial does not appear to be
an adequate opportunity. It cannot be said
with any justification that in such a short
time even if a new counsel was engaged he
could have prepared the case and do justice
with the trial of murder.
In such
circumstances, in order to arrive at the ends
of justice and in order to meet and fulfill the
vital requirements of equity and in order to
ensure a fair trial, this Court feels inclined
to direct that the trial court should fix some
date and call the aforesaid witness to be
cross examined by the accused.
6. It may be observed that whenever
the witness appears in the Court to be
cross examined, no adjournment shall be
sought on behalf of any of the accused
and cross examination will be done on
that very date. If at all any adjournment is
sought by accused, the court shall be at
liberty to close the evidence and proceed
with the trial in accordance with law.
7. In view of the above, the
impugned order dated 16.12.2015 stands
set aside. The court below is required to
take steps in order to get the witness cross
examined in the light of the directions
made in this order.
8. The application stands allowed.
9. A copy of this order be certified
to the lower court forthwith.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.01.2016
BEFORE
THE HON'BLE V.K. SHUKLA, J.
THE HON'BLE MAHESH CHANDRA TRIPATHI, J.
Writ -A No. 45262 OF 2015
Smt. Geeta Dixit & Ors.
 ...Petitioners
Versus
The Secy. Govt. of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
L.C. Srivastava, Neeraj Srivastava
Counsel for the Respondents:
C.S.C.
U.P. Absorption of Retrenched Employees of
Government
or
Public
corporation
in
Government Service Rules 1991-Rule 3 (1)
read with U.P. Absorption of Retrenched
Employee
of
Government
or
Public
Corporation
in
Government
Services
(Recession) Rules 2003-Rule 3 (2)(ii)-
Project officers working under non formal
education
scheme-after
abolition
of
scheme-Government decided to absorb
them as L.T Grade teacher in Government
Inter College-the G.O. by which decision
taken-High Court directed to re-consider
the feasibility of protection of status and
pay-High
Court
considering
them
as
retrenched
employee
issued
directionadmittedly the petitioners not worked since
April 2001-after 08.04.2003 the date on
enforcement of (Recession) Act 2003-their
services automatically dispense with-no
question of arrears of salary and other
consequential benefits-as two wrong can
not make one right-petition dismissed.
Held: Para-23 & 24
23. We are constrained to make a
mention that inspite of categorical provision
of Rule 1991 no other provisions were
available to the State Government for any
absorption of incumbent, once the project