# Shashi Bhushan v. Prof. Balraj Madhok

- **Citation:** (2002) 1 ILRA 185
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001-12-13
- **Case number:** Civil Misc. Application No. 6411 of 2001
- **Bench:** Sushil Harkauli
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shashi-bhushan-v-prof-balraj-madhok-39788
- **Pages:** 3

## Headnote

Criminal Procedure Code-section 482 -
In cases of rape and outraging modesty
of a woman, recalling the victim for
evidence requires some exceptionally
serious grounds.

(Held in para 6)
Case referred - (2001) 2 JIC Page 459

Merely because the witness could not be
properly examined or cross examined
earlier due to negligence or carelessness
or incompetence, he should not be
summoned
repeatedly
for
giving
evidence, unless the Court feels that the
interest
of
justice
would
suffer
irreparably and gravely, and even in such
a situation the inconvenience of the
recalled witness should be compensated
by
'realistic'
costs
payable
to
the
witness.

## Text

1All] Haribabu V. State of U.P. and another
185
Krishna Behrai (AIR 1970 SC 276),
Shashi Bhushan v. Prof. Balraj Madhok
(AIR 1972 SC 1251), Sumitra Devi v.
Shri Sheo Shanker Prasad Yadav (AIR
1973 SC 215), Beliram Bhalaik v. Jai
Behari lal Kachi (AIR (sic) SC 283),
Baldeo Singh v. Teja Singh (AIR 1975
SC 693) and Suresh Prasad Yadav v. Jai
Prakash Mishra (AIR 1975 SC 376), the
Court observed thus:

"Thus on a close and careful
consideration of the various authorities of
this Court from time to time it is manifest
that
the
following
conditions
are
imperative before a Court can grant
inspection or for that matter sample
inspection of the ballot papers:

(1) That it is important to maintain
the secrecy of the ballot which is
sacrosanct and should not be allowed to
be violated on frivolous, vague and
indefinite allegations;

(2) That before inspection is
allowed, the allegations made against the
elected candidate must be clear and
specific and must be supported by
adequate statements of material facts;

(3) The Court must be prima facie
satisfied on the materials produced before
the Court regarding the truth of the
allegations made for a recount;

(4) That the Court must come to the
conclusion that in order to grant prayer
for
inspection
it is necessary and
imperative to do full justice between
parties;

(5) That the discretion conferred on
the Court should not be exercised in such
a way so as to enable the applicant to
indulge in a roving inquiry with a view to
fish materials for declaring the election to
be void; and

(6) That on the special facts of a
given case sample inspection may be
ordered to lend further assurance to the
prima facie satisfaction of the Court
regarding the truth of the allegations made
for a recount and not for the purpose of
fishing out materials."

11. From the discussion made
hereinabove the Election Tribunal has
committed no errors in arriving at a
consideration that to do full justice
between the parties order for inspection of
ballot papers is necessary and imperative.
The Election Tribunal instead of taking
idealistic view it has taken pragmatic
view directing inspection, of ballot papers
to do full justice between the parties. In
the case on hand it cannot be said that
inspection of ballot papers has been
ordered by Election Tribunal for fishing
and roving inquiry, therefore, I decline to
issue a prerogative writ making the order
impugned dated 13.12.2001 ineffective.

Upshot of the aforesaid discussions
is that the instant petition lacks merit and
it is hereby dismissed in limine.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD DECEMBER 13, 2001.

BEFORE
THE HON'BLE SUSHIL HARKAULI, J.

Civil Misc. Application No. 6411 of 2001

Haribabu

...Petitioner
Versus
State of U.P. and another ...Respondents
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
186
Counsel for the Petitioner:
Sri Udai Narain Khare

Counsel for the Respondents:
A.G.A.

Criminal Procedure Code-section 482 -
In cases of rape and outraging modesty
of a woman, recalling the victim for
evidence requires some exceptionally
serious grounds.

(Held in para 6)
Case referred - (2001) 2 JIC Page 459

Merely because the witness could not be
properly examined or cross examined
earlier due to negligence or carelessness
or incompetence, he should not be
summoned
repeatedly
for
giving
evidence, unless the Court feels that the
interest
of
justice
would
suffer
irreparably and gravely, and even in such
a situation the inconvenience of the
recalled witness should be compensated
by
'realistic'
costs
payable
to
the
witness.

(Delivered by Hon'ble Sushil Harkauli, J.)

1. Persons who have witnessed a
crime are extremely reluctant in giving
evidence.
Prosecution
witnesses
are
turning
hostile
every
day.
If
the
administration of criminal justice is to be
saved from total collapse, a drastic change
in the mind set is needed for the Judges,
lawyers, litigants and the police.

2. When a witness comes to depose
before the court in a criminal trial, he is
doing public service to the criminal
justice system. While the Judge, the
lawyer is paid for the time he devotes to
litigation, and the litigant has a personal
interest in the litigation no remuneration
is paid to the witness for his time and
effort. He has no personal interest or stake
in the litigation. The witness is therefore
entitled to receive all respect and
protection for doing that service to the
society.

3. It is essential having regard to
reluctance on the part of people to give
evidence in the present times, that the
police should create a "witness protection
culture" and give out a very clear
impression by their consistent conduct
that if the accused threatens or tampers
with the witnesses (before or after the
evidence) he will not be spared by the
police, just as earlier there used to be a
clear impression given by the police that
if the accused touches a policeman he will
not be spared. It is only on such a firm
impressions that the State will be able to
deter the problem of hostile witnesses in
criminal trials.

4. It is most undesirable that after
giving evidence, the witness be left at the
mercy of the persons against whom he has
deposed in his evidence.

5. Equally it is the duty of the
Courts, counsel and the parties to
litigation to realize and appreciate the
inconvenience of the witnesses and not to
summon and re-summon the witnesses in
a casual manner to suit the convenience of
individual lawyers, litigants or for that
matter even the Courts.

6. Merely because the witness could
not be properly examined or cross
examined earlier due to negligence or
carelessness or incompetence, he should
not be summoned repeatedly for giving
evidence, unless the Court feels that the
interest of justice would suffer irreparably
and gravely, and even in such a situation
the inconvenience of the recalled witness
1All] Makkhan Lal Jaiswal and others V. Executive Engineer Iand Planning and others
187
should be compensated by 'realistic' costs
payable to the witness.

7. In respect of the present case U/s
354/504 IPC & 3(1) (x) SC/ST Act, I
have heard learned counsel for the
applicant who has relied upon the
decision in the case of a learned Single
Judge of this Court in the case of Jokhan
Patel Vs. State of U.P. (2001) 2 JIC 459.

8. The facts of this case are that in
Sessions trail no. 96 of 1998 an
application was moved by the accused for
recalling PW-2 Smt. Mamta for further
cross examination. She is the lady who is
alleged to have been molested by the
accused.
The
only
vague
ground
mentioned in the application was that
during the earlier cross- examination
certain main points were left out from
being asked. The Addl. Sessions Judge
has rejected the said application on the
ground of vagueness.

9. In cases of rape and outraging
modesty of a woman, recalling the victim
for evidence requires some exceptionally
serious grounds. Therefore, I am of the
opinion that the impugned order passed
by the Sessions Judge does not call for
interference under the inherent powers of
this Court. Having regard to these facts,
the decision relied upon does not help the
applicant. The present application under
section 482 CR.P.C. is accordingly
dismissed.
---------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED THE ALLAHABAD: 08.01.2002

BEFORE
THE HON'BLE B.K. RATHI, J.

Civil Revision No. 211 of 2000

Makkhan Lal Jaiswal and others

 ...Revisionists
Versus
Executive Engineer, I. and Planning
Division, Allahabad and others

 ...Opposite Parties.

Counsel for the Revisionist:
Sri Vimlesh Srivastava

Counsel for the Opposite Parties:
Sri R.D. Singh.

Code of Civil Procedure Order, 20 Rule
12 - Whether the provision of 0.22 r. 12
is applicable in execution proceeding?
Held - 'No' but after the death of decree
holder-the hairs must be brought on
record - fresh application for execution -
not maintainable.

Held - Para 8

This principle will equally apply to the
decree holder. Therefore, the execution
cannot proceed till the heirs of the
decree holder are brought on record in
her place.
Case law discussed:
AIR 1957 All 647
AIR 1955 Cal 573

(Delivered by Hon'ble B.K. Rathi, J.)

1. Smt. Vidyawati Gupta, who was
the owner and landlady of House No.
17/25 Hemilton Road, Allahabad filed
Suit No. 93/79 for eviction and recovery
of arrears of rent against the Executive
Engineer, Investigation and Planning