# Sanjay Kumar v. Court of A.D.J./Spl. Judge P.C. Act-VII, Lko & Anr

- **Citation:** (2020) 2 ILRA 81
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-28
- **Case number:** Misc. Single No. 32181 of 2019
- **Bench:** Rajeev Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjay-kumar-v-court-of-a-d-j-spl-judge-p-c-act-vii-lko-anr-45733
- **Pages:** 7

## Headnote

A. Prevention of corruption Act, 1988-Secs. 7,
13(1)(d) & 13(2)-Code of Cr. Procedure-Secs.
205 (2) & 317(1)-Petitioner-aggrieved byrecording of examination-in-chief-of PW1-in the
absence of petitioner and his counsel-normal
rule-evidence shall be taken-in presence of
accused-in his absence-his counsel must be
present-Petition Allowed.
82 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Held, that a question could be legitimately
be asked-what might happen if the counsel
engaged by the accused (whose personal
appearance is dispensed with)does not appear
or that the counsel does not cooperate in
proceeding with the case? We may point out
that the legislature has taken care of such
eventualities. Sec. 205(2) says that Magistrate
can in his discretion direct the personal
attendance of the accused at any stage of the
proceedings. The last limb of sec. 317(1)
confers a discretion on the Magistrate to direct
the personal attendance of the accused at any
subsequent stage of the proceedings. He can
even resort to other steps for forcing such
attendance.

Thus, it is found that the examination-in-chief
of PW1 was recorded in absence of the
applicant as well as his counsel. Therefore, the
order dated 06.11.2019 passed by the Special
Judge P.C Act-VII, Lko is hereby set aside.

List of cases cited:-

## Text

2 All. Sanjay Kumar Vs. Court of A.D.J./Spl. Judge P.C. Act-VII, Lko & Anr.
81
 Supreme Court has relied upon in Ajaib
Singh Vs. Sirhind Cooperative (Supra) and
reiterated that any limitation as prescribed
under the Limitation Act would not apply
in case an Industrial dispute is raised by a
workman. No Reference to a Labour Court
can be generally questioned on the ground
of delay alone. In Raghuveer Singh Vs.
General
Manager,
Haryana
State
Roadways
Corporation,
Ajaib
Singh
(Supra) has again been relied upon to hold
that the question of limitation would not
apply, although the Labour Court may
have the discretion to mould the relief in
case the workman approaches the Court
with delay.

35. Having perused the Award
impugned, this Court finds that the
opposite party no.1 has more or less stuck
to the settled position in law while
granting relief to the workman. It is found
that there was 10 years delay in starting
conciliation proceedings and therefore,
20% of the back wages have been granted
to the workman from the date the
application for conciliation proceedings
was filed by the workman till the date of
order for reinstatement. No back wages
have been granted for the ten years the
workman remained out of employment
with effect from 1992 to the year 2000.
Moreover, the workman concerned has
been given reinstatement only as Muster
Roll Coolie, the original post on which he
was working and he has been given
service benefits that were similar to
employees working on Muster Roll in the
same Establishment. The workman was
found entitled to continuity in service and
seniority also.

36. The Labour Court having
exercised its discretion judiciously in
giving relief to the workman, this Court
finds no good ground to show interference
in such discretion being judiciously
exercised.

37. This Court has also perused the
order-sheet. When the writ petition was
initially admitted by this Court on
03.11.2016, the impugned Award had been
stayed on the condition that the opposite
party no.2 shall be reinstated in service by
the petitioner. It has not been disputed by
the opposite party no.2 that he has not
been reinstated in service on the basis of
such conditional interim order.

38. This writ petition is, therefore,
dismissed. No order as to costs.
----------
(2020)02ILR A81
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.01.2020

BEFORE
THE HON'BLE RAJEEV SINGH, J.

Misc. Single No. 32181 of 2019

Sanjay Kumar ...Petitioner
Versus
Court of A.D.J./Spl. Judge P.C. Act-VII,
Lko & Anr. ...Respondents

Counsel for the Petitioner:
Pal
Singh
Yadav,
Chandra
Shekhar
Pandey, Prathama Singh

Counsel for the Respondents:
Govt. Advocate

A. Prevention of corruption Act, 1988-Secs. 7,
13(1)(d) & 13(2)-Code of Cr. Procedure-Secs.
205 (2) & 317(1)-Petitioner-aggrieved byrecording of examination-in-chief-of PW1-in the
absence of petitioner and his counsel-normal
rule-evidence shall be taken-in presence of
accused-in his absence-his counsel must be
present-Petition Allowed.
82 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Held, that a question could be legitimately
be asked-what might happen if the counsel
engaged by the accused (whose personal
appearance is dispensed with)does not appear
or that the counsel does not cooperate in
proceeding with the case? We may point out
that the legislature has taken care of such
eventualities. Sec. 205(2) says that Magistrate
can in his discretion direct the personal
attendance of the accused at any stage of the
proceedings. The last limb of sec. 317(1)
confers a discretion on the Magistrate to direct
the personal attendance of the accused at any
subsequent stage of the proceedings. He can
even resort to other steps for forcing such
attendance.

Thus, it is found that the examination-in-chief
of PW1 was recorded in absence of the
applicant as well as his counsel. Therefore, the
order dated 06.11.2019 passed by the Special
Judge P.C Act-VII, Lko is hereby set aside.

List of cases cited:-

1. Bhaskar Industries Ltd. vs. Bhawani Denim &
Apparels Ltd. & Ors. 2001 (7) SCC 401

(Delivered by Hon'ble Rajeev Singh, J.)

1. Heard Mr. Pal Singh Yadav,
learned counsel for the petitioner, Mr.
Aniruddh Kumar Singh, learned A.G.A.
and perused the record.

2. By means of the present petition,
the
petitioner
prayed
for
following
prayers:-

i. To pass appropriate order for
setting aside the examination in chief of
the informant PW-1, the opposite party
No.2.

ii. To pass appropriate orders for
transfer of trial of criminal case No.1302
of 2018 from the court of Additional
Sessions Judge/Special Judge-VII PC Act,
Lucknow to any other competent court for
trial of the case.

iii. To pass appropriate orders
for initiating judicial enquiry in respect of
aforesaid proceedings by misusing the
powers.

3. Learned counsel for the petitioner
submitted that on the written complaint of
the Inspector Jai Shankar Singh, the F.I.R.
as Case Crime No.240 of 2018, under
Sections 7, 13(1)(d), 13(2) of Prevention
of Corruption Act, 1988 was registered
against the petitioner on 30.05.2018 and
after investigation, the charge sheet was
filed and the cognizance was taken by the
competent
court.
After
framing
the
charges, the prosecution witness was
summoned. He further submitted that the
matter was fixed on 06.11.2019. On the
said date, the petitioner was unable to
attend the court due to illness, as a result,
he informed to his counsel and his counsel
stated him that he is out of station,
therefore, adjournment application would
be moved alongwith application for
exemption before the trial court by his
junior counsel.

4. Learned counsel for the petitioner
further
submitted
that
a
composite
application was moved before the trial
court by paying court fees of Rs.5/- for
both the prayer (Rs.3 for adjournment and
Rs.2 for exemption).

5. Learned counsel for the petitioner
further submitted that the prayer for
exemption was allowed and he further
submitted that as it was properly informed
to the trial court by moving the application
that the counsel for applicant was out of
station, so some other date may be fixed,
but without considering the provisions of
2 All. Sanjay Kumar Vs. Court of A.D.J./Spl. Judge P.C. Act-VII, Lko & Anr.
83
Section 317 Cr.P.C., the Examination-inChief of PW1 was recorded. He further
submitted that at about 3:00 p.m., the
junior of the counsel for the applicant went
to the court and found that prayer for
exemption of the applicant was accepted
but the Examination-in-Chief of PW1 was
recorded in absence of counsel for the
applicant, then another application was
moved immediately by the junior of the
counsel for the applicant with the prayer
for the rejection of Examination-in-Chief
of PW1, which was recorded in absence of
the counsel for the applicant and also
requested that the PW1 may be recalled
for recording Examination-in-Chief afresh.

6. Learned counsel for the petitioner
further submitted that the learned court
below did interpolation in the order dated
06.11.2019 and deleted the sentence Þdsoy
vkt ds fy, Lohd`rÞA

7. Learned counsel for the petitioner
further submitted that thereafter, the
Presiding Officer also endorsed on the
application that two prayers cannot be
prayed in a single application, hence
application is not maintainable rejected
and he further submitted that on the
second application moved by the junior of
the counsel for the applicant for recalling
of Examination-in-Chief of PW1, as his
Examination-in-Chief was recorded in
absence of the accused person as well as
counsel for the applicant, but his second
application was also rejected by the
Presiding Officer. The rejection order
dated
06.11.2019
on
the
second
application of the applicant is as under:-

06-11-19

iqdkj djkbZ xbZA vfHk0 dh gk0 ekQh
dk izk0 i= izLrqr gSA dsoy vkt ds fy,
Lohd`rA fujLr gqvkA

c;ku PW-1 vafdr fd;k x;kA
vfHk;qDr ds tq0 vf/k mifLFkrA gLrk{kj ls
bUdkj fd;kA fn0 6@12@19 dks okLrs thjg
is'kA

8. Learned counsel for the petitioner
further submitted that provisions of
Section 317 Cr.P.C. clearly provides that
in case, the presence of accused is
exempted, then the presence of his
counsel/lawyer for further proceeding is
required. In the present case, by moving
one duly stamped application making two
prayer one for exemption of the accused
and second for adjournment due to
personal reasons of the lawyer. He further
submitted that on the aforesaid application,
the
presence
of
the
applicant
was
exempted by the court below, as it was
mentioned in the application that the
lawyer
is
out
of
station,
but
the
Examination-in-Chief
of
PW1
was
recorded in absence of the lawyer of the
applicant and when this fact was apprised
to the court below, then the interpolation
was made in the order and the application
was also rejected by endorsing a new order
i.e. two prayers were made in the
application, therefore, the application was
not maintainable. He further submitted that
the
learned
court
below
failed
to
appreciate the fact that the application was
duly stamped and by making interpolation
in the exemption order, the application for
exemption was also rejected, but no any
process for presence of the applicant was
ordered either by the bailable warrant or
any other coercive steps. It also reveals
that change was made in the order sheet.
He further submitted that the Examinationin-Chief of PW1 was recorded in the
absence of lawyer of applicant cannot be
considered as an evidence, therefore, the
same is liable to be rejected and the court
below may be directed to recall the PW1
84 INDIAN LAW REPORTS ALLAHABAD SERIES
for fresh Examination-in-Chief in presence
of the lawyer of the applicant.

9. Mr. Gaurav Mehrotra, Advocate
appearing on behalf of the opposite party
No.1 informed that written instructions
duly signed by the Presiding Officer of the
court
below
are
available
and
the
photocopy of the same is taken on record
and it is undisputed that at the first
instance, the exemption application of
applicant was allowed and thereafter,
another order was endorsed on the
application that two prayers cannot be
prayed
in
a
single
application not
maintainable rejected and on the order
sheet, the exemption prayer was rejected
on the next moment and he further
submitted that there was no misuse of
power by the court, no miscarriage of
justice is caused to the petitioner by mere
recording of Examination-in-Chief of
witness and he further submitted that the
present Presiding Officer has no objection,
in case, the trial of the aforesaid case is
being transferred to some other court.

10. Considering the arguments of
learned counsel for the petitioner as well
as
Mr.
Gaurav
Mehrotra,
Advocate
appearing on behalf of ADJ/Special Judge
P.C. Act VII, Lucknow and going through
the records, it is undisputed that Case
No.1302 of 2018 arising out of Case
Crime No. 240 of 2018, under Sections
7/13(1)(d), r/w 13(2) of P.C. Act was fixed
for evidence of prosecution witness and
the
applicant
moved
an
application
through junior of his counsel and prayed
for his exemption and also prayed for
fixing some other date, as his counsel was
out of station and at the first instance, his
application for exemption was allowed and
it seems that the Examination-in-Chief of
PW1 was recorded despite the fact that it
was informed to the court below that the
counsel for applicant was out of station
and the case was fixed on 06.12.2019 for
cross-examination of PW1, but in the
afternoon, by way of second application
which read as under:-

U;k;ky; Jheku vij ftyk tt @PC
ACT 7 egksn; y[kuÅ

okn la0& 1302@18240@1

U/S 7/3 PC Act

Fkkuk%& jk;cjsyh

fu;r frfFk%& 6-11-19

ljdkj

 cuke

 lat; dqekj

izkFkZuk i= okLrs LFkxu vkosnu ds
mijkUr foi{kh vf/koDrk dh vuqifLFkfr esa xokgh dh
dk;Zokgh (PW 1) ij vkifRr@iqu% xokgh PW 1
dh xokgh djk;s tkus ds laca/k esa

egksn;]

U;k;ky;
Jhekuth
ds
le{k
izkFkhZ@vfHk;qDr dh vksj ls fuEufyf[kr fuosnu gSA

1- ;g fd mijksDr okn vkt U;k;ky;
Jheku th ds le{K fu;r gSA

2-
;g
fd
mijksDr
okn
esa
izkFkhZ@vfHk;qDr ds vf/koDrk vkt fn0 6-11-19 dks
U;kf;d dk;Z ls y[kuÅ 'kgj ls ckgj Fks ftldk
ftdz gkftjh ekQh ds vkosnu ds lkFk fd;k x;k
FkkA blds mijkUr Hkh PW 1 dh xokgh foi{kh
vf/koDrk dh vuqifLFkfr esa djokbZ xbZA

vr% Jhekuth ls fuosnu gS fd PW 1
dh xokgh izkFkhZ@vfHk;qDr ds vf/koDrk dh
vuqifLFkfr dks [kkfjt djus dh d`ik djsaA ,oa izkFkhZ
ds vf/koDrk dh mifLFkfr esa PW 1 dh xokgh iqu%
djkus dh d`ik djsaA Jhekuth dh egku d`ik gksxhA

y[kuÅ

izkFkhZ@vfHk;qDr

fnukad 6-11-19

}kjk dfu"B

le;& 3%00 cts

vf/koDrk

A request was made in the
aforesaid application that some other date
may be fixed and the PW1 may be recalled
for his Examination-in-Chief a fresh, as
his statement was recorded in the absence
of learned counsel for the applicant, but
2 All. Sanjay Kumar Vs. Court of A.D.J./Spl. Judge P.C. Act-VII, Lko & Anr.
85
his application was rejected by saying that
since the Examination-in-Chief of witness
has been recorded with due permission of
the court, therefore, his application was
not maintainable and it is also evident that
some changes were made in the order
sheet as discussed above.

11. It is also relevant to mention here
that
the
basic
canon
of
criminal
jurisprudence is that the accused is
innocent till proven guilty and that the
accused is entitled to a just and fair trial. A
fair trial, no doubt, should be governing
equally the accused, the prosecution or the
victims. Prosecution in a Criminal trial
gets an opportunity to first lead evidence.
The
defence
cross
examines
the
prosecution
witness
to
escape
their
veracity.

12.

According
to
Bentham,
"Witnesses are the eyes and ears of
justice" and the very existence of trial
court is only for dispensation of justice,
the process of court should not be used for
harassment of the parties, as Section 273
Cr.P.C. provides that evidence shall be
taken in presence of the accused or in the
absence of accused when his personal
attendance is dispensed with, in presence
of his pleader.

13. As the Hon'ble Supreme Court in
the case of Bhaskar Industries Ltd. Vs.
Bhawani Denim & Apparels Ltd. and
Others reported in (2001) 7 SCC 401
observed that normal rule is that the
evidence shall be taken in presence of the
accused, however, in absence of the
accused such evidence can be taken, but
then his counsel must be present. The
relevant paras of the judgment are being
reproduced as under:-

"12. We cannot part with this
matter without adverting to the plea made
by the second accused before the trial
court for exempting him from personal
appearance. He highlighted two factors
while seeking such exemption. First is that
the offence under Section 138 of the
Negotiable Instruments Act is relatively
not a serious offence as could be seen from
the fact that the legislature made it only a
summons case. Second is, the insistence on
the physical presence of the accused in the
case would cause substantial hardships
and sufferings to him as he is a resident of
Haryana. To undertake a long journey to
reach Bhopal for making his physical
presence in the court involves, apart from
great hardships, much expense also,
contended the counsel. He submitted that
the advantages the court gets on account
of the presence of the accused are far less
than the tribulations the accused has to
suffer to make such presence in certain
situations and hence the court should
consider whether such advantages can be
achieved by other measures. Therefore, he
relied on Section 317 of the Code. It reads
thus:

"317. Provision for enquiries
and trial being held in the absence of
accused in certain cases.--(1) At any stage
of an enquiry or trial under this Code, if
the Judge or Magistrate is satisfied, for
reasons to be recorded, that the personal
attendance of the accused before the court
is not necessary in the interests of justice,
or that the accused persistently disturbs
the proceedings in court, the Judge or
Magistrate
may,
if
the
accused
is
represented by a pleader, dispense with
his attendance and proceed with such
enquiry or trial in his absence, and may, at
any subsequent stage of the proceedings,
direct the personal attendance of such
accused.
86 INDIAN LAW REPORTS ALLAHABAD SERIES

(2) If the accused in any such
case is not represented by a pleader, or if
the Judge or Magistrate considers his
personal attendance necessary, he may, if
he thinks fit and for reasons to be recorded
by him, either adjourn such enquiry or
trial, or order that the case of such
accused be taken up or tried separately."

13. Sub-section (1) envisages
two exigencies when the court can proceed
with the trial proceedings in a criminal
case after dispensing with the personal
attendance of an accused. We are not
concerned with one of those exigencies i.e.
when the accused persistently disturbs the
proceedings. Here we need consider only
the other exigency. If a court is satisfied
that in the interest of justice the personal
attendance of an accused before it need
not be insisted on, then the court has the
power to dispense with the attendance of
that accused. In this context, a reference to
Section 273 of the Code is useful. It says
that:

"273.
Except
as
otherwise
expressly provided, all evidence taken in
the course of the trial or other proceeding
shall be taken in the presence of the
accused, or, when his personal attendance
is dispensed with, in the presence of his
pleader."

If a court feels that insisting on
the personal attendance of an accused in a
particular case would be too harsh on
account of a variety of reasons, can't the
court afford relief to such an accused in
the matter of facing the prosecution
proceedings?

14. The normal rule is that the
evidence shall be taken in the presence of
the accused. However, even in the absence
of the accused such evidence can be taken
but then his counsel must be present in the
court, provided he has been granted
exemption from attending the court. The
concern of the criminal court should
primarily be the administration of criminal
justice. For that purpose the proceedings
of the court in the case should register
progress. Presence of the accused in the
court is not for marking his attendance
just for the sake of seeing him in the court.
It is to enable the court to proceed with the
trial. If the progress of the trial can be
achieved even in the absence of the
accused the court can certainly take into
account the magnitude of the sufferings
which a particular accused person may
have to bear with in order to make himself
present in the court in that particular case.

15. These are days when
prosecutions for the offence under Section
138 are galloping up in criminal courts.
Due
to
the
increase
of
inter-State
transactions through facilities of the
banks, it is not uncommon that when
prosecutions are instituted in one State the
accused might belong to a different State,
sometimes a far distant State. Not very
rarely, such accused would be ladies also.
For prosecution under Section 138 of the
NI Act the trial should be that of a
summons case. When a Magistrate feels
that insistence of personal attendance of
the accused in a summons case, in a
particular
situation,
would
inflict
enormous
hardship
and
cost
to
a
particular accused, it is open to the
Magistrate to consider how he can relieve
such an accused of the great hardships,
without
causing
prejudice
to
the
prosecution proceedings.

16.

Section
251
is
the
commencing provision in Chapter XX of
the Code which deals with trial of
summons cases by Magistrates. It enjoins
on the court to ask the accused whether he
pleads guilty when the "accused appears
or is brought before the Magistrate". The
2 All. Rajat Gangwar Vs. State of U.P. & Ors.
87
 appearance envisaged therein can either
be by personal attendance of the accused
or through his advocate. This can be
understood from Section 205(1) of the
Code which says that:

"205. (1) Whenever a Magistrate
issues a summons, he may, if he sees
reason so to do, dispense with the
personal attendance of the accused and
permit him to appear by his pleader."

17. Thus, in appropriate cases
the Magistrate can allow an accused to
make even the first appearance through a
counsel. The Magistrate is empowered to
record the plea of the accused even when
his counsel makes such plea on behalf of
the accused in a case where the personal
appearance of the accused is dispensed
with. Section 317 of the Code has to be
viewed in the above perspective as it
empowers the court to dispense with the
personal attendance
of
the
accused
(provided he is represented by a counsel in
that case) even for proceeding with the
further steps in the case. However, one
precaution which the court should take in
such a situation is that the said benefit
need be granted only to an accused who
gives an undertaking to the satisfaction of
the court that he would not dispute his
identity as the particular accused in the
case, and that a counsel on his behalf
would be present in court and that he has
no objection in taking evidence in his
absence. This precaution is necessary for
the further progress of the proceedings
including examination of the witnesses.

18. A question could legitimately
be asked -- what might happen if the
counsel engaged by the accused (whose
personal appearance is dispensed with)
does not appear or that the counsel does
not cooperate in proceeding with the case?
We may point out that the legislature has
taken care of such eventualities. Section
205(2) says that the Magistrate can in his
discretion direct the personal attendance
of the accused at any stage of the
proceedings. The last limb of Section
317(1) confers a discretion on the
Magistrate
to
direct
the
personal
attendance
of
the
accused
at
any
subsequent stage of the proceedings. He
can even resort to other steps for
enforcing such attendance."

14. Thus, it is found that the
Examination in Chief of PW1 was
recorded in absence of the applicant as
well as his counsel. Therefore, the order
dated 06.11.2019 passed by the Special
Judge P.C. Act-VII, Lucknow in Case
No.1302 of 2018 arising out of Case
Crime No. 240 of 2018, under Sections
7/13(1)(d), r/w 13(2) of P.C. Act is hereby
set aside.

15. The trial court is directed to
recall PW1 and record his Examination-inChief in accordance with the observation
mentioned here and above and also
proceed strictly, in accordance with law.
----------
(2020)02ILR A87
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.12.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJEEV MISRA, J.

PIL No. 2497 of 2019

Rajat Gangwar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Kunal Shah, Sri Abhinav Bhattacharya

Counsel for the Respondents: