# Rupesh Kumar Srivastava @ Nirmal Srivastava v. State of U.P. & Anr

- **Citation:** (2024) 4 ILRA 581
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-09
- **Case number:** Application U/S 482. No. 3163 of 2024
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rupesh-kumar-srivastava-nirmal-srivastava-v-state-of-u-p-anr-51837
- **Pages:** 6

## Headnote

(A) Criminal Law - Quashing of Order -
Fair
Trial
-
The
Code
of
Criminal
Procedure, 1973 - Sections 207 & ,482 -
Inherent power - Section 311 - Power to
summon material witness, or examine
person present, Section 233 - Entering
582 INDIAN LAW REPORTS ALLAHABAD SERIES
upon
defence
-
Cross-Examination
-
Plenary Power - Ends of Justice - Recall of
Witness - Accused's Right - Indian Penal
Code, 1860
- Section 307
- Court
distinguished
between
discretionary
power of courts under Section 311 Cr.P.C.
and the limited right of an accused under
Section 233 Cr.P.C. - Under section 311
Cr.P.C., the power lies in the courts only
and under section 233 Cr.P.C., the right
lies with the accused and the court's
interference is limited - Court has plenary
power to summon witness at any stage -
fair trial includes adducing evidence -
Adducing evidence in support of the
defence is a valuable right - Rules of
procedure designed to ensure justice
should be scrupulously followed, and the
courts should be jealous in seeing that
there is no breach of them. (Para - 13,15)

Applicant sought to quash order rejecting his
application to cross-examine a key witness,
P.W.-1 - after multiple missed opportunities -
partly due to COVID-19 pandemic - applicant
argued
that
denial
of
cross-examination
impeded a fair trial.(Para 2-10)

HELD: - Trial court failed to apply the law in right
perspective and ignored the difference in scope
and implications in which the provisions of section
311 Cr.P.C. and section 233(3) Cr.P.C. are meant
to be applied. Impugned order passed under
Section 307 I.P.C., suffers from legal flaw was set
aside & reversed. Applicant given last opportunity
for cross-examination. (Para 16 - 20)

Application u/s 482 Cr.P.C. allowed. (E-7)

List of Cases cited:

## Text

4 All. Rupesh Kumar Srivastava @ Nirmal Srivastava Vs. State of U.P. & Anr.
581
the
Ministry
of
External
Affairs,
Government of India, New Delhi (referred
above) while passing the impugned order
and had rejected the application of the
applicant for grant of permission for
renewal/re-issue of passport, thus, the
impugned order is not sustainable in the
eyes of law, therefore, the same is liable
to be set aside/reversed.

12. In view of above, in the light of
the notification dated 25.08.1993 and the
Office Memorandum dated 10.10.2019 as
well as the judgment passed by Hon'ble
the Supreme Court in the case of Maneka
Gandhi (Supra) and considering the
larger mandate of the Article 19 and 21 of
the Constitution of India, the impugned
order
dated
21.12.2023
passed
by
Additional Chief Judicial Magistrate,
Court No. 29, District Lucknow, by
means
of
which
application
for
renewal/re-issue of passport of appliant
was rejected, is hereby set aside and
reveresed.

13.

Accordingly,
the
instant
application under Section 482 Cr.P.C. is
allowed with following directions:

(i) The applicant shall move a
fresh application along with certified
copy of this order for renewal/re-issue of
her
passport
before
the
concerned
Regional Passport Officer within 20 days
from the date of this order.

(ii) In case such application is
moved by the applicant, within the time
stipulated by this Court, the concerned
Regional Passport Officer/authority shall
decide the application and pass an order
for renewal/re-issue of the passport of the
applicant within 01 month from the date
of production of certified copy of this
order, after completing the due formalities
in accordance with law.

(iii) The applicant shall inform
and take permission from the trial court
concerned before going abroad and she
shall appear before the trial Court on the
date fixed as directed by the trial Court and
she shall be bound by the terms and
conditions imposed by the trial court.

(iv) Let a copy of this order be given
to Sri Surya Bhan Pandey, learned Sr.
Advocate and Deputy Solicitor General of
India appearing for Union of India and Sri
Ashok Kumar Srivastava, learned A.G.A.
for
the
State
for
information
and
communication
to
the
authorities
concerned.
----------
(2024) 4 ILRA 581
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.04.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Application U/S 482. No. 3163 of 2024

Rupesh Kumar Srivastava @ Nirmal
Srivastava ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Mukesh Kumar Tewari

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - Quashing of Order -
Fair
Trial
-
The
Code
of
Criminal
Procedure, 1973 - Sections 207 & ,482 -
Inherent power - Section 311 - Power to
summon material witness, or examine
person present, Section 233 - Entering
582 INDIAN LAW REPORTS ALLAHABAD SERIES
upon
defence
-
Cross-Examination
-
Plenary Power - Ends of Justice - Recall of
Witness - Accused's Right - Indian Penal
Code, 1860
- Section 307
- Court
distinguished
between
discretionary
power of courts under Section 311 Cr.P.C.
and the limited right of an accused under
Section 233 Cr.P.C. - Under section 311
Cr.P.C., the power lies in the courts only
and under section 233 Cr.P.C., the right
lies with the accused and the court's
interference is limited - Court has plenary
power to summon witness at any stage -
fair trial includes adducing evidence -
Adducing evidence in support of the
defence is a valuable right - Rules of
procedure designed to ensure justice
should be scrupulously followed, and the
courts should be jealous in seeing that
there is no breach of them. (Para - 13,15)

Applicant sought to quash order rejecting his
application to cross-examine a key witness,
P.W.-1 - after multiple missed opportunities -
partly due to COVID-19 pandemic - applicant
argued
that
denial
of
cross-examination
impeded a fair trial.(Para 2-10)

HELD: - Trial court failed to apply the law in right
perspective and ignored the difference in scope
and implications in which the provisions of section
311 Cr.P.C. and section 233(3) Cr.P.C. are meant
to be applied. Impugned order passed under
Section 307 I.P.C., suffers from legal flaw was set
aside & reversed. Applicant given last opportunity
for cross-examination. (Para 16 - 20)

Application u/s 482 Cr.P.C. allowed. (E-7)

List of Cases cited:

1. Kalyani Baskar Vs M.S. Sampoornam, (2007)
2 SCC 258

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Sri Satish Chandra Mishra,
learned Senior Advocate assisted by Sri
Mukesh Kumar Tewari, learned counsel for
the applicant and Sri Awadhesh Kumar
Pandey, learned A.G.A. for the State as
well as perused the record.

2. The instant application under
Section 482 Cr.P.C. has been moved by
the applicant, namely, Rupesh Kumar
Srivastava Alias Nirmal Srivastava with a
prayer to quash the impugned order dated
22.03.2024 passed by learned Additional
Sessions Judge, Court No.9, Gonda in
Sessions Trial No.53/2016, arising out of
Case Crime No.203 of 2012, under
Section
307
I.P.C.,
Police
Station
Motiganj, District Gonda.

3. Learned senior counsel for the
applicant submits that final report was
submitted in the case of applicant and one
co-accused by the Investigating Officer on
30.07.2013 on the ground that the
complicity of the applicant and co-accused
was not found in the alleged crime.
Thereafter, the complainant had filed an
application on 14.09.2014 before the
Superintendent of Police, Gonda for
further
investigation
of
the
matter,
wherein further investigation was carried
out and the charge sheet was submitted
against the applicant on 22.01.2016 under
Section 307 I.P.C. in a mechanical manner
without considering the evidence.

4. Learned senior counsel further
submits that cognizance upon the charge
sheet was taken and the trial of the case
was started wherein the complainant was
summoned for examination as witness. On
01.08.2017,
the
complainantSushil
Shukla/P.W.-1 was examined in chief,
however, the cross-examination of this
witness could not be completed due to
paucity of time, therefore, the matter was
postponed for cross-examination.
4 All. Rupesh Kumar Srivastava @ Nirmal Srivastava Vs. State of U.P. & Anr.
583

5. Learned senior counsel further
submits that on 09.08.2017, the applicant
has filed an application under Section 207
Cr.P.C. before the learned trial court for
providing certain documents which had
been
collected
during
investigation,
however, the same was refused and
application was rejected by the learned trial
court
vide
order
dated
20.02.2020.
Thereafter, the P.W.-1 was summoned for
cross-examination
on
10.03.2021,
23.03.2021, 01.11.2021, 24.11.2021 and
23.12.2021 but due to pandemic of
COVID-19, the cross-examination could
not be concluded. On 05.04.2022, the
matter was fixed for cross-examination but
an application for adjournment was filed by
the applicant, which was rejected by the
learned trial court vide order dated
05.04.2022 closing the opportunity of cross
examination.

6. Learned senior counsel further
submits that on 18.08.2022, the applicant
has filed an application for grant of
permission for cross examination of P.W.-
1/Sushil Shukla, however, the same was
rejected by the learned trial court vide order
dated 06.09.2022 and on 15.02.2024, the
learned trial court has passed an order
whereby the P.W.-1 Sushil Shukla was
summoned for 27.02.2024 for crossexamination in respect of the co-accused
Triyugi Narain Gupta. In the meantime, the
applicant has moved an application under
Section 482 Cr.P.C. No.5258 of 2023
before this Hon'ble Court in the month of
May, 2023 for quashing of the order dated
06.09.2022 passed by the learned trial court
whereby the application for grant of
permission for cross-examination of P.W.-1
was rejected, however, during the pendency
of the aforesaid case before this Hon'ble
Court, the learned trial court had passed the
order dated 15.02.2024 whereby the P.W.-1
Sushil Shukla was summoned for crossexamination in respect of co-accused
Triyugi Narain Gupta, therefore, the
applicant has withdrawn the aforesaid case
i.e. application under Section 482 Cr.P.C.
No.5258 of 2023 on 01.03.2024.

7. Learned senior counsel further
submits that the applicant had filed an
application under Section 311 Cr.P.C.
before the learned trial court on 06.03.2024
for
grant
of
permission
for
crossexamination of P.W.-1 Sushil Shukla,
which has been rejected by the learned trial
court vide order dated 22.03.2024 on the
ground that the opportunity of crossexamination in respect of the applicant has
already been closed on 05.04.2022 as the
applicant had already been afforded the
opportunities
of
cross-examination
of
P.W.-1 Sushil Shukla. The same has been
challenged in the present case before this
Court.

8. Thus, learned senior counsel for the
applicant submits that the learned trial
court had illegally closed the opportunity of
cross-examination. The trial of the present
applicant as well as of the co-accused have
been arisen from the same case crime and
are running together and once the P.W.-1
Sushil Shukla had already been summoned
for cross examination on 01.04.2024 in
respect of co-accused Triyugi Narain Gupta
then there is no legal impediment if the
applicant is allowed to cross examine the
said witness on the date fixed in order to
secure the ends of justice by holding an
unbiased and fair trial which will also be in
consonance of the principle construed
under Article 21 of the Constitution of
India.Learned
senior
counsel
further
submits that while passing the impugned
order, the learned trial court has not
considered
the
fact
that
the
cross-
584 INDIAN LAW REPORTS ALLAHABAD SERIES
examination of the informant P.W.-1, who
is the prime witness of the case, is
necessary and in absence of crossexamination of the informant, it is not
possible to deliver the justice in good sense
and hold an unbiased and fair trial which is
mandate to be followed in view of the
provisions of Article 21 of the Constitution
of India.

9. Learned senior counsel for the
applicant lastly submits that in the interest
of justice as well as to secure the ends of
justice in judicial manner, one last
opportunity of cross-examination of P.W.-1
Sushil Shukla should be afforded to the
applicant. The applicant undertakes that he
will not misuse the liberty of crossexamination of P.W.-1 Sushil Shukla and
will definitely conclude the same within a
day without seeking any adjournment.
Thus, the instant application may be
allowed and the impugned order dated
22.03.2024 may be quashed.

10. On the other hand, SriAwadhesh
Kumar Pandey, learned A.G.A. for the
State submits that the learned trial court
had rightly passed the impugned order
dated 22.03.2024 whereby the application
for summoning the P.W.-1 Sushil Shukla
for cross-examination was rejected. The
applicant was provided ample opportunities
to cross examine the P.W.-1, however, he
was just lingering on the matter on one and
another ground, which is a ploy to get the
proceedings delayed. He further submits
that the learned trial court had rightly
closed the opportunity of the applicant for
cross-examining the P.W.-1 Sushil Shukla.

11. After considering the arguments
advanced by learned counsel for the
respective parties and after perusal of
material placed before this Court, this
Court is of the view that it will be relevant
to quote Section 311 Cr.P.C., which reads
as under:-

"311. Power to summon material
witness, or examine person present. - Any
Court may, at any stage of any inquiry,
trial or other proceeding under this Code,
summon 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."

12. Under the provisions of section
311 Cr.P.C., the court has a plenary power
to summon any person at any stage of the
proceedings as a witness. This power
includes recall and re-examination of any
person who has already been examined.
This power is to be exercised when the
court finds it necessary to summon/recall
any witness for just decision of the case.
The law puts no fetters on the powers of the
courts to call for any witness to attain the
highest goal of justice. In my opinion this
provision of law gives expression to the
inherent power of the courts which is
available to them by virtue of being the
supreme authority who has been entrusted
with responsibility to do justice. The power
lies with the Court alone as juxtaposed to
rights or powers of parties. The others stake
holders whether prosecution or defence,
have a limited role of drawing the attention
of the court and putting the relevant
material before it which may assist it in
arriving at a correct inference. On the other
hand, section 233 Cr.P.C. works in a
different plane altogether. For better
understanding of difference between the
two sections, I find it appropriate to
reproduce section 233 Cr.P.C. as below:-
4 All. Rupesh Kumar Srivastava @ Nirmal Srivastava Vs. State of U.P. & Anr.
585

"233. Entering upon defence. (1)
Where the accused is not acquitted under
Section 232, he shall be called upon to
enter on his defence and adduce any
evidence he may have in support thereof.

(2) If the accused puts in any
written statement, the Judge shall file it
with the record.

(3) If the accused applies for the
issue of any process for compelling the
attendance
of
any
witness
or
the
production of any document or thing, the
Judge shall issue such process unless he
considers, for reasons to be recorded, that
such application should be refused on the
ground that it is made for the purpose of
vexation or delay or for defeating the ends
of justice."

13. Section 233 Cr.P.C. finds place
under Chapter XVIII titled as 'trial before a
court of session'. This provision is essential
part of session trial and is applicable when
the prosecution evidence is complete and
the accused is given an opportunity to
produce the evidence in its defence.
Undoubtedly this right has been given to
the defence to produce its witnesses as part
of fair trial and as part of legal principle of
hearing both the sides. In my opinion, here
the right belongs to the accused and not to
the court concerned, in the sense that the
court concerned shall ordinarily issue
process and can decline to summon the
witness only for the reason that the request
is made for the purpose of vexation or
delay or for defeating the ends of justice.
The difference between the powers of the
court and the right of the accused is too
obvious. Under section 311 Cr.P.C., the
power lies in the courts only and under
section 233 Cr.P.C., the right lies with the
accused and the court's interference is
limited. The court can only refuse to issue
summons where it ought to have refused on
the ground that it is made for the purpose of
vexation or delay or for defeating the ends
of justice only.

14. In my view, if the application is
refused on the grounds which are not
covered by three excluding clauses, as
provided in latter part of section 233(3)
Cr.P.C. such approach shall be alien as far
as scope of section 233 Cr.P.C. is
concerned.

15. In Kalyani Baskar vs. M.S.
Sampoornam; (2007) 2 SCC 258, the
Hon'ble Supreme Court while elaborating
the meaning of fair trial observed as
below:-

"Fair trial" includes fair and
proper opportunities allowed by law to
prove her innocence. Adducing evidence
in support of the defence is a valuable
right. Denial of that right means denial of
fair trial. It is essential that rules of
procedure designed to ensure justice
should be scrupulously followed, and the
courts should be jealous in seeing that
there is no breach of them."

16. I have gone through the impugned
order dated 22.03.2024 passed by learned
Additional Sessions Judge, Court No.9,
Gonda. The trial court had failed to apply
the law in right perspective and ignored the
difference in scope and implications in
which the provisions of section 311 Cr.P.C.
and section 233(3) Cr.P.C. are meant to be
applied. Hence the order of the trial court
suffers from legal flaw and is not
sustainable which is liable to be set aside.

17. Accordingly, the impugned order
dated
22.03.2024
passed
by
learned
586 INDIAN LAW REPORTS ALLAHABAD SERIES
Additional Sessions Judge, Court No.9,
Gonda in Sessions Trial No.53/2016, arising
out of Case Crime No.203 of 2012, under
Section 307 I.P.C., Police Station Motiganj,
District Gonda is hereby set aside and
reversed.

18. Accordingly, in the interest of
justice, the applicant is given a last
opportunity to appear before the learned
concerned trial court on or before 15.04.2024
alongwith certified copy of this order and
move an application for cross examination of
the witness P.W.-1Sushil Shukla and the
learned trial court is directed to summon the
witness P.W.-1Sushil Shukla for cross
examination on 19.04.2024, the date fixed or
any other date fixed by the learned trial court.

19. It is made clear that it is the last
opportunity provided to the applicant to cross
examine the P.W.-1 Sushil Shukla, failing
which, the benefit of this order will come to
an end.

20. With the aforesaid observation and
direction, the instant application stands
allowed.
----------
(2024) 4 ILRA 586
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.04.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Application U/S 482. No. 3307 of 2024

Sushri Shreya Verma & Ors. ...Applicants
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicants:
Sri Mukesh Kumar Tewari, Sri Bhupender
Pal Singh
Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure,
1973
-
Sections
155(2),190,195(1) & 482 - Inherent
power - Indian Penal Code, 1860 -
Section 171-H - Illegal payments in
connection with an election, Section 188
-
Disobedience
to
order
duly
promulgated by public servant - Noncognizable offence - Prior permission -
Prima facie case - Abuse of process -
Quashing of proceedings - Police have
no right or jurisdiction to investigate the
matter, without prior permission of the
Magistrate, who has got jurisdiction to
try those offences - when a prosecution
at the initial stage is asked to be
quashed, the test to be applied by the
court
is
as
to
whether
the
uncontroverted
allegations
as
made
prima facie establish the offence -
Quashing of the criminal proceedings is
an exception than a rule - Power of High
Court is very wide but should be
exercised very cautiously to do real and
substantial justice for which the court
alone exists. (Para - 26,28,35)

Applicant
No.1's
father
was
contesting
Vidhanshabha Election, 2022 - 50 persons,
including applicant Nos. 1 and 2, were
canvassing
in
support
of
without
prior
permission - FIR lodged against applicants for
alleged offences under Sections 171H and 188
IPC - Applicants sought quashing of charge
sheet and summoning order. (Para 3,12-13)

HELD: - Trial court while summoning the
applicants by impugned order has totally failed
to appreciate the factual and legal aspect of the
matter. Entire charge sheet filed by police
vitiated by serious incurable defects and
procedural
irregularities.
Impugned
charge
sheet and summoning order quashed due to
lack of jurisdiction and non-compliance with
statutory requirements. (Para 28, 36-38)

Application u/s 482 Cr.P.C. allowed. (E-7)

List of Cases cited: