# Sallahuddin v. State of U.P. & Ors. Opp. Parties 820 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2023) 5 ILRA 819
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-28
- **Case number:** Application u/s 482 No. 4201 of 2023
- **Bench:** Ajai Kumar Srivastava-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sallahuddin-v-state-of-u-p-ors-opp-parties-820-indian-law-reports-allahabad-50298
- **Pages:** 7

## Headnote

A. Criminal Law - Criminal Procedure
Code,1973 - Section 231(2) - Evidence
Act, 1872 - Sections 135 & 138 - Cross
examination - Trial court deferred the
cross examination of all the witnesses in
bulk - Permissibility - Cryptic order, how
far can be sustained - Held, the impugned
order dated 14.03.2023 is cryptic, by
means of which, cross-examination of 73
prosecution witnesses has been deferred
in bulk without recording existence of any
such tenable ground as has come to be
recognized by the Hon'ble Supreme Court
in paragraph No. 23 of Rasheed's case.
(Para 16)

B. Criminal Law - Criminal Procedure
Code, 1973 - Section 482 - Scope of
interference - Abuse of process of law -
Remedy of filing recall application, how
far can bar the exercise of inherent power
- Held, power u/s 482 Cr.P.C. is an extraordinary power vested with the High
Courts in order to prevent abuse of
process of the Court or failure of justice -
The power vested with the learned trial
court under Section 231(2) Cr.P.C. is a
discretionary power, which should be
exercised judiciously - Further held, it
cannot be said that the remedy seeking
recall
of
impugned
order
dated
14.03.2023 is available to the applicant in
view of restriction contained in Section
362 Cr.P.C. (Para 17, 18 and 19)

Application allowed. (E-1)

List of Cases cited:

## Text

5 All. Sallahuddin Vs. State of U.P. & Ors.
819
should not summon accused person to face
criminal trial. It is further submitted that
the
trial
court
has
not
taken
into
consideration the material placed before the
trial court and, therefore, the trial court has
materially
erred
in
summoning
the
petitioner.

17. So far as quashing of entire
proceedings is concerned, from the perusal of
the material on record and looking into the
facts of the case at this stage, it cannot be said
that no offence is made out against the
petitioners. All the submission made relates
to the disputed question of fact, which cannot
be adjudicated upon by this Court. At this
stage, only prima facie case is to be seen in
the light of the law laid down by Supreme
Court in cases of R.P. Kapur Vs. State of
Punjab, A.I.R. 1960 S.C. 866, State of
Haryana Vs. Bhajan Lal, 1992 SCC (Cr.)
426, State of Bihar Vs. P.P.Sharma, 1992
SCC
(Cr.)
192
and
lastly
Zandu
Pharmaceutical Works Ltd. Vs. Mohd.
Saraful Haq and another (Para-10) 2005
SCC (Cr.) 283. The disputed defence of the
accused cannot be considered at this stage.
Moreover, the petitioners have got a right of
discharge
according
to
the
provisions
prescribed in Cr.P.C., as the case may be,
through a proper application for the said
purpose and he is free to take all the
submissions in the said discharge application
before the trial court.

18. So far as the summoning order passed
by the learned trial court is concerned, at the
stage of taking cognizance, trial court can simply
form an opinion as to whether the case is fit for
taking and committing the matter for trial or not.
In the present case, learned trial court clearly
expressed his opinion that he perused all the
record and clearly indicated that the material
placed before him is sufficient to proceed the
case. Thus, the cognizance order is not a
proforma order. Every aspect is touched by
learned trial court and petitioner failed to adduce
any evidence which caused prejudiced to him.
So, the cognizance and summoning order is
perfectly valid and there is no occasion to quash
the same.

19. The prayer for quashing the impugned
summoning order as well as impugned
proceedings is refused.

20. However, considering the facts and
circumstances of the case, it is provided that if
the applicant/petitioner appear before the trial
court and apply for bail, then bail application
shall be considered and decided in accordance
with law propounded by the Apex Court in
Satender Kumar Antil Vs. Central Bureau of
Investigation and another (Special Leave to
Appeal (Crl.) No.5191 of 2021, decided on
07.10.2021. In this case Hon'ble the Apex Court
has already laid down guidelines for grant of
bail, without fettering the discretion of the
courts concerned and the statutory provisions
governing consideration in grant of bail, no
specific directions need be issued by this Court
as it is expected that the court concerned will
take into consideration the necessary guidelines
already issued by the Apex Court.

21. Accordingly, the application under
Section 482 Cr.P.C. is disposed of.
----------
(2023) 5 ILRA 819
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 28.04.2023

BEFORE

THE HON'BLE AJAI KUMAR SRIVASTAVA-I, J.

Application u/s 482 No. 4201 of 2023

Sallahuddin ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties
820 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Applicant:
Salil Kumar Srivastava, Rahul Srivastava

Counsel for the Opp. Parties:
G.A.

A. Criminal Law - Criminal Procedure
Code,1973 - Section 231(2) - Evidence
Act, 1872 - Sections 135 & 138 - Cross
examination - Trial court deferred the
cross examination of all the witnesses in
bulk - Permissibility - Cryptic order, how
far can be sustained - Held, the impugned
order dated 14.03.2023 is cryptic, by
means of which, cross-examination of 73
prosecution witnesses has been deferred
in bulk without recording existence of any
such tenable ground as has come to be
recognized by the Hon'ble Supreme Court
in paragraph No. 23 of Rasheed's case.
(Para 16)

B. Criminal Law - Criminal Procedure
Code, 1973 - Section 482 - Scope of
interference - Abuse of process of law -
Remedy of filing recall application, how
far can bar the exercise of inherent power
- Held, power u/s 482 Cr.P.C. is an extraordinary power vested with the High
Courts in order to prevent abuse of
process of the Court or failure of justice -
The power vested with the learned trial
court under Section 231(2) Cr.P.C. is a
discretionary power, which should be
exercised judiciously - Further held, it
cannot be said that the remedy seeking
recall
of
impugned
order
dated
14.03.2023 is available to the applicant in
view of restriction contained in Section
362 Cr.P.C. (Para 17, 18 and 19)

Application allowed. (E-1)

List of Cases cited:

1. St. of Orissa Vs Dhaniram Luhar; (2004) 5
SCC 568

2. St. of Kerala Vs Rasheed; (2019) 13 SCC 297

3. Lal Harsh Deo Narain Singh & anr. Vs St. of
U.P. & ors.; 2004 SCC OnLine All 2085

4. Adalat Prasad Vs Rooplal Jindal & ors.; (2004)
7 SCC 338

(Delivered by Hon'ble Ajai Kumar
Srivastava-I, J.)

1. Heard Sri Salil Kumar Srivastava,
learned counsel for the applicant, Sri Shiv
Nath Tilhari, learned A.G.A. for the State
and perused the entire record.

2. The instant application under
Section 482 Cr.P.C. has been filed by the
applicant for quashing the order dated
14.03.2023 passed by the learned Special
Judge (NIA/ ATS)/ Additional Sessions
Judge-V, Lucknow in S.T. No.13751 of
2021 titled as State vs. Salahuddin and
others arising out of Case Crime No.09 of
2021, under Sections 417, 120-B, 153-A,
153-B, 295-A, 298, 121-A, 123 I.P.C. and
Sections 3/5/8 of U.P. Prohibition of
Unlawful Conversion of Religion Act,
2021, Police Station ATS, Gomti Nagar,
pending in the court of learned Special
Judge (ATS/ NIA Court)/ Additional
Sessions Judge-V, Lucknow.

3. The brief facts giving rise to the
instant application under Section 482
Cr.P.C. also is that the present applicant is
standing trial for the offences under
Sections 417, 120-B, 153-A, 153-B, 295-A,
298, 121-A, 123 I.P.C. and Sections 3/5/8
of U.P. Prohibition of Unlawful Conversion
of Religion Act, 2021, which emanated
from Case Crime No.09 of 2021. Vinod
Kumar has been examined as prosecution
witness-1 in the learned trial court. The
learned trial court has passed the impugned
order dated 14.03.2023 stating therein that
examination-in-chief of P.W.-1, Vinod
Kumar has been done and his crossexamination is yet to be completed. Due to
his absence on 14.03.2023, the cross-
5 All. Sallahuddin Vs. State of U.P. & Ors.
821
examination of P.W.-1, Vinod Kumar was
deferred. The learned trial court also
observed in the impugned order dated
14.03.2023 that as there is a direction of
this Court to get the trial expedited,
therefore, the learned trial court directed
that the examination in chief of all the
prosecution witness would be recorded
first. Admittedly, there are 73 witnesses
listed in the charge sheet. Their crossexamination will stand deferred and once
the
examination-in-chief
of
all
the
prosecution witnesses has been done, they
would be summoned for their crossexamination.

4. Aggrieved by the aforesaid
impugned order dated 14.03.2023, the
applicant has filed the instant application
under Section 482 Cr.P.C.

5. Learned counsel for the applicant
has submitted that the impugned order
dated 14.03.2023 is patently illegal insofar
as it is not reasoned and speaking order and
the same does not disclose any reason for
doing so.

6. His further submission is that the
statutory scheme for
examination of
witnesses is contained in Sections 135 and
138 of Indian Evidence Act. The provisions
contained in Section 231(1) Cr.P.C. is an
exception
to
the
general
rule
for
examination and cross-examination of
witnesses. Therefore, while passing such
sweeping
order
in
exercise
of
its
discretionary power, the learned trial court
ought
to
have
acted
with
utmost
circumspection and care, which is not
reflected from the impugned order dated
14.03.2023.

7. In order to buttress his aforesaid
submission,
learned
counsel
for
the
applicant has placed reliance upon the
judgments of the Hon'ble Supreme Court in
State of Orissa vs. Dhaniram Luhar1 and
State of Kerala vs. Rasheed2.

8. Learned counsel for the applicant
has also submitted that the impugned order
dated 14.03.2023 is also against the
provisions contained in proviso to Section
309 Cr.P.C., therefore, the impugned order
dated 14.03.2023 being patently illegal and
an abuse of process of this Court, deserves
to be quashed.

9. Per contra, learned A.G.A. for the
State has vehemently opposed the prayer
by submitting that the impugned order
dated 14.03.2023 is a reasoned and
speaking order, which has come to be
passed
in
the
peculiar
facts
and
circumstances of this case where the
prosecution has to examine as many as
seventy three witnesses and the trial is to be
concluded expeditiously, therefore, the
same cannot be said to be arbitrary.

10. His further submission is that an
application seeking recall of impugned
order dated 14.03.2023 moved by the
present applicant is pending disposal with
the learned trial court. Therefore, also the
present application is not maintainable and
deserves to be dismissed.

11. In order to buttress his aforesaid
submission, learned A.G.A. has placed
reliance upon the judgment of this Court in
Lal Harsh Deo Narain Singh and
another vs. State of U.P. and others3.

12. Having heard the learned counsel
for the applicant, learned A.G.A. for the
State and upon perusal of record, it
transpires that the present applicant is
standing trial for the offences under
822 INDIAN LAW REPORTS ALLAHABAD SERIES
Sections 417, 120-B, 153-A, 153-B, 295-A,
298, 121-A, 123 I.P.C. and Sections 3/5/8
of U.P. Prohibition of Unlawful Conversion
of Religion Act, 2021, which emanated
from Case Crime No.09 of 2021. Vinod
Kumar has been examined as prosecution
witness-1 in the learned trial court. The
learned trial court has observed in the
impugned order dated 14.03.2023 that
examination-in-chief of P.W.-1, Vinod
Kumar has been recorded and his crossexamination is yet to be completed. Due to
his absence on 14.03.2023, the crossexamination of P.W.-1, Vinod Kumar was
deferred. The learned trial court also
observed by means of impugned order
dated 14.03.2023 that as there is a direction
of this Court to get the trial expedited,
therefore, the learned trial court directed
that the examination in chief of all the
prosecution witness would be recorded
first. Their cross-examination will stand
deferred and once the examination-in-chief
of all the prosecution witnesses has been
recorded, they would be summoned for
their cross-examination.

13. Being germane to the present
controversy, Sections 135 and 138 of
Indian Evidence Act are quoted herein
below:-

"135. Order of production and
examination of witnesses.-The order in
which
witnesses
are
produced
and
examined shall be regulated by the law and
practice for the time being relating to civil
and criminal procedure respectively, and,
in the absence of any such law, by the
discretion of the Court.

138.
Order
of
examinations.-
Witnesses shall be first examined-in chief
then (if the adverse party so desires) crossexamined, then (if the party calling him so
desires) re-examined.

The
examination
and
crossexamination must relate to relevant facts
but the cross-examination need not be
confined to the facts to which the witness
testified on his examination-in-chief."

14. The ambit of provision contained
in Section 231(2) Cr.P.C. came to be
considered by the Hon'ble Supreme Court
in a judgment rendered in Rasheed's case
(supra). Paragraph Nos.15, 17, 18, 19 and
23 of Rasheed's case (supra), being
relevant, are quoted herein below:-

"15. Section 231 CrPC indicates that
the Judge is given the discretion to defer
cross-examination of a witness, until any
other witness or witnesses have been
examined.
Section
231
is
set
out
hereinbelow:

"231. Evidence for prosecution.-(1)
On the date so fixed, the Judge shall
proceed to take all such evidence as may be
produced in support of the prosecution.

(2) The Judge may, in his discretion,
permit the cross-examination of any
witness to be deferred until any other
witness or witnesses have been examined
or recall any witness for further crossexamination." (emphasis supplied)

The phraseology of Section 231(2)
mirrors Section 242(3) ["242. Evidence for
prosecution.-(1)-(2)* * * (3) On the date
so fixed, the Magistrate shall proceed to
take all such evidence as may be produced
in support of the prosecution:Provided that
the Magistrate may permit the crossexamination of any witness to be deferred
until any other witness or witnesses have
been examined or recall any witness for
further cross-examination."] CrPC which
provides for a similar discretion to a
Magistrate in the trial of a warrant case
under Chapter XIX CrPC."
5 All. Sallahuddin Vs. State of U.P. & Ors.
823

17. The Karnataka High Court in
Shamoon Ahmed Sayed v. Intelligence
Officer
[Shamoon
Ahmed
Sayed
v.
Intelligence Officer, 2008 SCC OnLine Kar
371 : 2009 Cri LJ 1215 : ILR 2008 KAR
4378] , delivered by Shantanagoudar, J. (as
he then was), had observed that Section
231(2) as well as Section 242(3) CrPC
must be interpreted in light of the
legislative intent behind the enactment of
Section 251-A of the Code of Criminal
Procedure, 1898.

18. What follows from the discussion
is that the norm in any criminal trial is for
the examination-in-chief of witnesses to
be carried out first, followed by crossexamination,
and
re-examination
if
required, in accordance with Section 138
of the Indian Evidence Act, 1872. Section
231(2)
CrPC,
however,
confers
a
discretion on the Judge to defer the crossexamination of any witness until any
other witness or witnesses have been
examined, or recall any witness for
further cross-examination, in appropriate
cases. Judicial discretion has to be
exercised in consonance with the statutory
framework and context while being aware
of reasonably foreseeable consequences. [
A Constitution Bench of this Court in
Gurbaksh Singh Sibbia v. State of Punjab,
(1980) 2 SCC 565 : 1980 SCC (Cri) 465
had elucidated upon the nature and
manner of exercise of judicial discretion
in para 21. The relevant extract has been
reproduced hereunder : (SCC p. 584, para
21)"21.
...
Every
kind
of
judicial
discretion, whatever may be the nature of
the matter in regard to which it is required
to be exercised, has to be used with due
care and caution. In fact, an awareness of
the context in which the discretion is
required to be exercised and of the
reasonably foreseeable consequences of
its use, is the hallmark of a prudent
exercise of judicial discretion."(emphasis
supplied)] The party seeking deferral
under Section 231(2) CrPC must give
sufficient reasons to invoke the exercise of
discretion by the Judge, and deferral
cannot be asserted as a matter of right.
19. Several High Courts have held that the
discretion under Section 231(2) CrPC
should be exercised only in "exceptional
circumstances" [Sisir Debnath v. State of
W.B., 2017 SCC OnLine Cal 21442;
Shamoon Ahmed Sayed v. Intelligence
Officer, 2008 SCC OnLine Kar 371 : 2009
Cri LJ 1215 : ILR 2008 KAR 4378] , or
when "a very strong case" [Amit Kumar
Shaw v. State of W.B., 2010 SCC OnLine
Cal 2632] has been made out. However,
while it is for the parties to decide the
order of production and examination of
witnesses in accordance with the statutory
scheme, a Judge has the latitude to
exercise discretion under Section 231(2)
CrPC if sufficient reasons are made out
for deviating from the norm.

23. While deciding an application
under Section 231(2) CrPC, a balance
must be struck between the rights of the
accused, and the prerogative of the
prosecution
to
lead
evidence.
The
following
factors
must
be
kept
in
consideration:

(i) possibility of undue influence on
witness(es);

(ii)
possibility
of
threats
to
witness(es);

(iii)
possibility
that
non-deferral
would enable subsequent witnesses giving
evidence on similar facts to tailor their
testimony to circumvent the defence
strategy;

(iv) possibility of loss of memory of
the witness(es) whose examination-inchief has been completed;

(v) occurrence of delay in the trial,
and the non-availability of witnesses, if
824 INDIAN LAW REPORTS ALLAHABAD SERIES
deferral is allowed, in view of Section
309(1) CrPC [ "309. Power to postpone or
adjourn
proceedings.-(1)
In
every
inquiry or trial the proceedings shall be
continued from day to day until all the
witnesses
in
attendance
have
been
examined, unless the court finds the
adjournment of the same beyond the
following day to be necessary for reasons
to be recorded:"See also Vinod Kumar v.
State of Punjab, (2015) 3 SCC 220 :
(2015) 2 SCC (Cri) 226 : (2015) 1 SCC
(L&S) 712; and S.J. Chaudhary v. State
(UT of Delhi), (1984) 1 SCC 722 : 1984
SCC (Cri) 163.] .

These factors are illustrative for
guiding the exercise of discretion by a
Judge under Section 231(2) CrPC.

(emphasis supplied)"

15. It is also useful to refer to a
judgment rendered by the Hon'ble Supreme
Court in Dhaniram Luhar's case (supra).
Paragraphs No.7 and 8, being relevant, are
extracted herein below:-

"7. Reason is the heartbeat of every
conclusion, and without the same it
becomes lifeless. (See Raj Kishore Jha v.
State of Bihar [(2003) 11 SCC 519 : 2004
SCC (Cri) 212 : (2003) 7 Supreme 152] .)

8. Even in respect of administrative
orders Lord Denning, M.R. in Breen v.
Amalgamated Engg. Union [(1971) 1 All
ER 1148 : (1971) 2 QB 175 : (1971) 2 WLR
742 (CA)] observed:"The giving of reasons
is one of the fundamentals of good
administration." In Alexander Machinery
(Dudley) Ltd. v. Crabtree [1974 ICR 120
(NIRC)] it was observed:"Failure to give
reasons amounts to denial of justice."
"Reasons are live links between the mind of
the decision-taker to the controversy in
question and the decision or conclusion
arrived at." Reasons substitute subjectivity
by objectivity. The emphasis on recording
reasons is that if the decision reveals the
"inscrutable face of the sphinx", it can, by
its silence, render it virtually impossible for
the courts to perform their appellate
function or exercise the power of judicial
review in adjudging the validity of the
decision.
Right
to
reason
is
an
indispensable part of a sound judicial
system; reasons at least sufficient to
indicate an application of mind to the
matter before court. Another rationale is
that the affected party can know why the
decision has gone against him. One of the
salutary requirements of natural justice is
spelling out reasons for the order made; in
other
words,
a
speaking-out.
The
"inscrutable face of the sphinx" is
ordinarily incongruous with a judicial or
quasi-judicial performance."

16. Thus examined in the light of
aforesaid settled legal position, it transpires
that the impugned order dated 14.03.2023
is cryptic, by means of which, crossexamination of 73 prosecution witnesses
has been deferred in bulk without recording
existence of any such tenable ground as has
come to be recognized by the Hon'ble
Supreme Court in paragraph No.23 of
Rasheed's case (supra).

17. So far as the objection of learned
A.G.A. for the State to the effect that the
recall application is still pending with the
learned trial court, therefore, the instant
application
cannot
be maintained,
is
concerned, it is needless to mention that
power under Section 482 Cr.P.C. is an
extra-ordinary power vested with the High
Courts in order to prevent abuse of process
of the Court or failure of justice.

18. The ratio of a judgment rendered
by the Hon'ble Supreme Court in Adalat
5 All. Ajit Singh & Ors.Vs. State of U.P. & Anr.
825
Prasad vs. Rooplal Jindal and others4 is
that any criminal court does not have power
to recall its own order, which is substantive
in nature like order issuing summon.
Therefore in the considered opinion of this
Court, the law laid down by this Court in
Lal Harsh Deo Narain Singh's case
(supra) is distinguishable insofar as in the
instant case, it cannot be said that the
remedy seeking recall of impugned order
dated 14.03.2023 is available to the
applicant in view of restriction contained in
Section 362 Cr.P.C.

19. It is needless to mention that the
power vested with the learned trial court
under
Section
231(2)
Cr.P.C.
is
a
discretionary power, which should be
exercised
judiciously.
Therefore,
the
learned trial court will always be at liberty
to pass appropriate order, in accordance
with law laid down by the Hon'ble
Supreme Court in Rasheed's case (supra).

20. The upshot of aforesaid discussion is
that the instant application under Section 482
Cr.P.C. deserves to be allowed and is,
accordingly,
allowed.
Consequently,
the
impugned order dated 14.03.2023 passed by the
learned Special Judge (NIA/ ATS)/ Additional
Sessions Judge-V, Lucknow in S.T. No.13751
of 2021 titled as State vs. Salahuddin and others
arising out of Case Crime No.09 of 2021, under
Sections 417, 120-B, 153-A, 153-B, 295-A,
298, 121-A, 123 I.P.C. and Sections 3/5/8 of
U.P. Prohibition of Unlawful Conversion of
Religion Act, 2021, Police Station ATS, Gomti
Nagar, is, hereby, set aside.

21. The learned trial court concerned
is also directed to proceed with the trial of
S.T. No.13751 of 2021 titled as State vs.
Salahuddin and others expeditiously having
regard to the provisions contained in
Section 309 Cr.P.C.
----------
(2023) 5 ILRA 825
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.05.2023

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application u/s 482 No. 6981 of 2022

Ajit Singh & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Ishan Baghel, Veena Vijayan Rajes

Counsel for the Opp. Parties:
Anurag Kumar Singh, Shailendra Misra, Shiv P.
Shukla

A. Criminal Law - Criminal Procedure Code
- Sections 320 (5) & 482 - Inherent
power
-
Scope
of
interference
-
Conviction order was passed for noncompoundable offences - Complaints of
wrongful deprivation of the corporate and
commercial rights in the Company by
certain acts of forgery was made - The
disputes was of a civil nature - The
wrongs did not amount to commission of
offence against the society at large -
Relevance - Settlement was taken place
between
the
parties
-
Quashing
of
proceeding sought - How far, High Court
can exercise inherent power - Held, the
Trial
Court
cannot
compound
noncompoundable offences, but the High
Court can quash proceedings of criminal
case
involving
non-compoundable
offences. Similarly, as the appellate Court
could have compounded the offences even
after conviction, had the offences been
compoundable,
applying
the
same
analogy,
this
Court
can
quash
the
proceedings involving non-compoundable
offences even after conviction by the trial
Court, where the proceedings deserve to
be quashed keeping in view the principles
laid down by the Hon'ble Supreme Court