# State of U.P v. Shambhu Nath Singh and

- **Citation:** (2011) 3 ILRA 1435
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-12-08
- **Bench:** Sudhir Kumar Saxena
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-shambhu-nath-singh-and-42072
- **Pages:** 5

## Headnote

Code of Criminal Procedure-Section 309
and 311-witness are guest of court-like
eye and ears of justice-if witness appear
before court-proceeding should not be
adjourned except for unfair reasons-but
engagement
of
accused
counsel
in
another court or engagement of new
counsel-can
not
be
ground
for
adjournment-order
passed
by
Trail
Court-justified-considering
inadequate
amount towards money to the witnessrecommendation made for necessary
amendment in Cr.P.C. itself diet

Held: Para 12 and 17

Once witness is in attendance they
should not be returned unexamined,
keeping in view the provisions of Section
309 Cr.P.C. as amended. Section 309
Cr.P.C. permits adjournments for special
reasons. Section 309(2) Cr.P.C., excludes
certain reasons like engagement of
counsel in other Courts etc. A joint
reading of Section 309(1) and Section
309(2) Cr.P.C would show that the
intention of legislature is unambiguous
i.e. once witness comes to court he
should be examined. If adjournment is
necessary, then case can be adjourned to
next day but that too for special reasons
like sudden violence, incapability of
witness on account of illness etc.

Witnesses are guest of the court as they
are assisting the court in reaching at the
correct conclusion, therefore, they are
entitled to be treated with respect as
they are eyes and ears of the justice.
Their stature is above the other stake
holders and reluctance of the witness to
depose in the court amounts to failure in
dispensation of justice. This has to be
checked and it is high time High Court
looked into this malady and identified
the problems faced by them and made
their job hassle-free.
Case law discussed:
State of U.P. Vs. Shambhu Nath Singh and
Ors. made in Appeal (Criminal) No. 392 of
2001; {1999(7) SCC 604}

## Text

3 All] Dildar and others V. The State of U.P.
1435
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 08.12.2011

BEFORE
THE HON'BLE SUDHIR KUMAR SAXENA,J.

U/S 482/378/407 No. - 5430 of 2011

Dildar and others

 ...Petitioner
Versus
The State of U.P.

 ...Respondents

Counsel for the Petitioner:
Sri B.Q Siddiqui

Counsel for the Respondents:
Govt. Advocate

Code of Criminal Procedure-Section 309
and 311-witness are guest of court-like
eye and ears of justice-if witness appear
before court-proceeding should not be
adjourned except for unfair reasons-but
engagement
of
accused
counsel
in
another court or engagement of new
counsel-can
not
be
ground
for
adjournment-order
passed
by
Trail
Court-justified-considering
inadequate
amount towards money to the witnessrecommendation made for necessary
amendment in Cr.P.C. itself diet

Held: Para 12 and 17

Once witness is in attendance they
should not be returned unexamined,
keeping in view the provisions of Section
309 Cr.P.C. as amended. Section 309
Cr.P.C. permits adjournments for special
reasons. Section 309(2) Cr.P.C., excludes
certain reasons like engagement of
counsel in other Courts etc. A joint
reading of Section 309(1) and Section
309(2) Cr.P.C would show that the
intention of legislature is unambiguous
i.e. once witness comes to court he
should be examined. If adjournment is
necessary, then case can be adjourned to
next day but that too for special reasons
like sudden violence, incapability of
witness on account of illness etc.

Witnesses are guest of the court as they
are assisting the court in reaching at the
correct conclusion, therefore, they are
entitled to be treated with respect as
they are eyes and ears of the justice.
Their stature is above the other stake
holders and reluctance of the witness to
depose in the court amounts to failure in
dispensation of justice. This has to be
checked and it is high time High Court
looked into this malady and identified
the problems faced by them and made
their job hassle-free.
Case law discussed:
State of U.P. Vs. Shambhu Nath Singh and
Ors. made in Appeal (Criminal) No. 392 of
2001; {1999(7) SCC 604}

(Delivered by Hon'ble S.K. Saxena,J. )

Heard
learned
counsel
for
the
petitioners and learned AGA.

1. The petitioners through this petition
have challenged the order dated 30-11-2011
whereby
application
for
recalling
prosecution witnesses Balak Ram and
Surendra Pal has been rejected.

2. It appears that the petitioners are
accused under Section 302 and 201 IPC. On
11.11.2010, prosecution examined Balak
Ram and Surendra Pal who had identified
the skeleton as well as the clothes belonging
to the deceased. It is mentioned in the order
sheet that opportunity for cross-examination
has been given but none came to crossexamine, consequently, cross-examination
was
closed.
On
30.11.2011,
petitioners/accused moved application for
recalling the above witness as for some
reason they could not be cross-examined.
This application has been rejected by the
trial court vide order dated 30.11.2011. This
very order has been impugned herein.
1436 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

3. Learned counsel for the petitioners
submits that he was prepared to crossexamine now and one opportunity may be
given. In the petition ground taken is that
previous counsel did not cross-examine as
such, new counsel has been engaged.

4. It is necessary to have a look at
Sections 309 & 311 Cr.P.C.. Relevant
provisions are quoted below:-

"309. Power to postpone or adjourn
proceedings- In every inquiry or trial the
proceedings shall be held as expeditiously
as possible, and in particular, when the
examination of witnesses has once begun,
the same 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:

Provided further that when witnesses
are in attendance, no adjournment or
postponement shall be granted, without
examining them, except for special reasons
to be recorded in writing."

Fourth proviso to Section 309(2)
which has been inserted by Code of
Criminal
Procedure(Amendment)
Act,
2008(5 of 2009) has taken care of such
situation. The said proviso is reproduced
below:

"(a) no adjournment shall be granted
at he request of a party, except where the
circumstances are beyond the control of
that party;

(b) the fact that the pleader of a party
is engaged in another Court, shall not be a
ground for adjournment;

(C) where a witness is present in Court
but a party or his pleader is not present or
the party or his pleader though present in
Court, is not ready to examine or crossexamine the witness, the Court may, if
thinks fit, record the statement of the
witness and pass such orders as it thinks fit
dispensing with the examination-in-chief or
cross-examination of the witness, as the
case may be."

5. It is apparent that once witness is in
attendance, adjournment has to be refused
and has to be granted very rarely and in
exceptional circumstances for which special
reasons have to be recorded. Even if case is
to be adjourned for some reasons then
adjournment would be granted only till next
day. It is also evident that engagement of
lawyer in other court is not a ground for
adjournment and court is not supposed to
wait for counsel, if witness is present in the
court. The court is left with no option but to
record the statement of witness and pass
further orders dispensing with the crossexamination.

6. In the case at hand, trial court has
done the same. It recorded the statement of
witnesses and as none came to crossexamine them, opportunity for crossexamination was closed. The order was
strictly in accordance with amended
provisions of Section 309 Cr.P.C.

7. Section 311 Cr.P.C. gives a
discretion to the court to recall or reexamine any person, if the evidence appears
to be essential for just decision of the case.
This provision has to be read with Section
309 Cr.P.C. as both the provisions provide a
light into the scheme envisaged by Code.
3 All] Dildar and others V. The State of U.P.
1437

8. It has become a common practice
that once a witness of the prosecution
appears, defence would make all efforts to
get the case adjourned. One of the common
grounds is engagement of the new counsel
or illness of the counsel. Lawyers strike is
also taken as a ground for adjournment.

9. So far as strike is concerned, Apex
Court in unambiguous terms has held that
lawyers have no right to go on strike as
such, the Trial Court cannot adjourn the
examination of the witnesses if they are
present in court, on the ground of the
resolution of the Bar Association or
Abstention of lawyers from attending
judicial work. Moreover, in a Sessions
Trial, lawyer is supposed to appear after
making preparations and they are not
supposed to accept brief on the day, the case
is posted for evidence. If client has taken a
chance to engage a new lawyer on the day
the trial is fixed for evidence changing his
previous counsel, Trial Court is not bound
by this arrangement and will be fully
justified in refusing adjournment on this
ground. Similarly, engagement of counsel
in other courts is not the ground for
adjournment as has been clarified by the
amendment of 2009. Speedy trial being the
fundamental right of the accused, delay in
trial causes immense harm to the society as
a whole.

10. If in this background, Section
309 and 311 of Cr.P.C. are interpreted, it
is manifest that engagement of new
counsel cannot be a ground for recalling
the witnesses. Similarly, inadvertence,
ignorance, absence or even incompetence
of a counsel cannot be the sole ground for
exercising powers under Section 311
Cr.P.C.

11. Observations of the Hon'ble Apex
Court given in the case of State of U.P. Vs.
Shambhu Nath Singh and Ors. made in
Appeal (Criminal) No. 392 of 2001 are
being quoted below:

"We make it abundantly clear that if a
witness is present in court he must be
examined on that day. The court must know
that most of the witnesses could attend the
court only at heavy cost to them, after
keeping
aside
their
own
avocation.
Certainly they incur suffering and loss of
income......

"It is a sad plight in the trial courts
that witnesses who are called through
summons or other processes stand at the
doorstep from morning till evening only to
be told at the end of the day that the case is
adjourned to another day. This primitive
practice must be reformed by presiding
officers of the trial courts and it can be
reformed by every one provided the
presiding
officer
concerned
has
a
commitment to duty.......... "Even when
witnesses are present cases are adjourned
on far less serious reasons or even on
flippant grounds. Adjournments are granted
even in such situations on the mere asking
for it. Quite often such adjournments are
granted to suit the convenience of the
advocate concerned. We make it clear that
the legislature has frowned at granting
adjournments on that ground. At any rate
inconvenience of an advocate is not a
special reason for bypassing the mandate
of Section 309 of the Code.(emphasis mine)

"In Rajdeo Sharma (II) Vs. State of
Bihar {1999(7) SCC 604} this Court
pointed out that the trial court cannot be
permitted to flout the mandate of parliament
unless the court has very cogent and strong
reasons and no court has permission to
1438 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
adjourn examination of witnesses who are
in attendance beyond the next working
day."

12. Once witness is in attendance they
should not be returned unexamined, keeping
in view the provisions of Section 309
Cr.P.C. as amended. Section 309 Cr.P.C.
permits adjournments for special reasons.
Section 309(2) Cr.P.C., excludes certain
reasons like engagement of counsel in other
Courts etc. A joint reading of Section
309(1) and Section 309(2) Cr.P.C would
show that the intention of legislature is
unambiguous i.e. once witness comes to
court
he
should
be
examined.
If
adjournment is necessary, then case can be
adjourned to next day but that too for
special reasons like sudden violence,
incapability of witness on account of illness
etc.

13. Thus, court would be fully
justified in rejecting the adjournment on the
ground that a new counsel has been
engaged or that counsel is engaged in
another court if witness is in attendance,
Trial Courts have been very lenient in
giving adjournments that is why legislature
intervened and amended Section 309
Cr.P.C. Provisions of Section 309 Cr.P.C.
as amended are mandatory in nature and
Trial Court would be failing in duty, if they
do not implement this mandate in letter and
spirit. Trial Courts are supposed to work
with the sense of urgency keeping in mind
the intention of legislature while amending
Section 309 Cr.P.C.

14. Strike of lawyers, engagement of
counsel in other cases or engagement of
fresh counsel are definitely the reasons not
contemplated under Section 309 Cr.P.C.
and Trial court would see that no case be
adjourned on this ground. If witnesses are
present in the court, Sessions Judge would
ensure that the courts working under them
do not return the witnesses unexamined.

15. From the above, it is apparent that
the Trial Court had rightly closed the
opportunity of cross-examination and has
committed no irregularity/illegality in not
recalling those witnesses.

16. Court can take notice of the fact
that witnesses in criminal cases are unwilling
to testify. While insecurity of witnesses
could be one reason, equally important
reasons are frequent adjournments, ordeal of
criminal cases and lack of proper facilities in
court campus for witnesses, which further
dampens their spirit.

17. Witnesses are guest of the court as
they are assisting the court in reaching at the
correct conclusion, therefore, they are
entitled to be treated with respect as they are
eyes and ears of the justice. Their stature is
above the other stake holders and reluctance
of the witness to depose in the court amounts
to failure in dispensation of justice. This has
to be checked and it is high time High Court
looked into this malady and identified the
problems faced by them and made their job
hassle-free.

18. So far as threat or coercion to
witnesses is concerned, this is already
engaging the attention of law makers and
soon they may evolve a witness protection
programme so that safety of witnesses is
ensured before, during and after trial. One
thing significant to note here is that even
inside the court premises, witnesses are not
safe and incident of beating/misbehaviour
with the witnesses in the court premises or
inside the court rooms are on the rise.
Needless to point out that District Judge
being in-charge of the campus is duty-
3 All] Sharifunnisa V. State of U.P. and others
1439
bound to ensure that no violence occurs in
the court's campus. If violence takes place,
it should be immediately taken care of and
police be immediately moved to arrest the
culprits
and
bring
them
to
justice
irrespective of their position whether they
are pairokar of the litigants or lawyer or
police personnel. Violence in the court
campus cannot be tolerated and if the
District Judge is unable to check this, it will
be treated as failure on his part and the High
Court may take suitable action against such
District Judge, who failed to prevent
violence in the court campus or take proper
action in time. The presiding officer in
whose court witnesses are not allowed to
depose freely without fear will immediately
report the matter to the District Judge and
ensure proper security as well as conducive
ambience
for
a
witness
to
depose
independently and fearlessly.

19. It is also the duty of the District
Judge to ensure proper sitting place with
minimum infrastructure i.e. toilets, drinking
water etc.

20. It is seen that inadequate amount
is paid as diet-money to the witnesses under
General Rule(Criminal). Witness comes to
court from his house missing his one day
wages. Even in the National Rural
Employment Guarantee Scheme, one gets
more the Rs. 100. Rs. 10/- to 15/- is pittance
and not sufficient even for snacks what to
say for meal.

21. Registrar General and Principal
Secretary(Judicial), State of U.P. are
directed to take steps and ensure that the
amount of diet money which is ridiculously
low i.e. Rs. 10/- and 15/-(figures supplied
by Registry) is raised now looking to the
inflation,
minimum
wages
and
the
assistance that is provided by witness to the
Court.

22. With the aforesaid observation
petition is dismissed.

23. Copy of the judgment be sent to
Registrar General for placing it before
Hon'ble the Chief Justice so that efforts can
be made for amending the General
Rule(Criminal).

24. Copy of the judgment be sent to
Registrar General, High Court and Principle
Secretary, Judicial Government of U.P. for
necessary action.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.12.2011

BEFORE
THE HON'BLE AJAI LAMBA, J.

Writ Petition No. 6489(MS) of 2011

Sharifunnisa

... Petitioner
Versus
State of U.P. & others ...Opposite parties

Constitution
of
India
-Article
226Quashing of criminal proceeding-offence
u/s 363, 366 I.P.C.-victim after attaining
majority-married with accused and living
in her matrimonial house-application for
disposes of Petition on merit keeping in
view
of
subsequent
development
of
compromise-direction of Magistrate to live
with her father-futile exercise-Petition
allowed in term of compromise.

Held: Para 8

In
view
of
the
above
facts
and
circumstances of the case, it would be in
the interest of peace and harmony to allow
the petition. Direction issued by the
Magistrate in the impugned order dated
10.10.2011 is to the effect that the