# Yash Pratap Singh v. State of U.P

- **Citation:** (2024) 10 ILRA 755
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-18
- **Case number:** Criminal Misc. Bail Application No. 2171 of 2024
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yash-pratap-singh-v-state-of-u-p-51101
- **Pages:** 9

## Headnote

Law-Code
of
Criminal
Procedure, 1973-Sections 309 & 439- Trial
Court has conducted examination of the victim
on 6 dates ranging between a period of 21⁄2
months, whereas examination of a witness is to
be recorded on a day-to-day basis- When the
victim was fully supporting the prosecution case,
756 INDIAN LAW REPORTS ALLAHABAD SERIES
neither there was any occasion for the public
prosecutor to make a request for declaring him
to be hostile nor was there any occasion for the
trial Court to declare him to be hostile. It prima
facie shows that the public prosecutor has acted
under influence of the accused persons so as to
give undue advantage to them- The approach
adopted by the trial Court in accepting the
request of the public prosecutor to declare the
victim to be hostile, even when he was fully
supporting the prosecution case, speaks volume
about the conduct of the presiding officer of the
Court.

B. Legal Remembrancer / Principal Secretary
(Law) is directed to look into this matter and
take
suitable
action
against
the
public
prosecutor in the aforesaid case in accordance
with law- Sessions Judge, Lucknow is directed
to transfer Sessions Trial from the Court of
Additional Sessions Judge, Court No. 16,
Lucknow to some other Court to ensure that the
trial is conduct fairly, without any undue
influence at the behest of the accused persons.

Bail application rejected. (E-15)

List of Cases cited:

## Text

10 All. Yash Pratap Singh Vs. State of U.P.
755
the applicant to show that Section 18 of the
1989 Act is pari materia to Section 438 of
Cr.P.C.

15. In the present case, the State
amendment explicitly prohibits anticipatory
bail for offences punishable by death
sentence. The statutory bar is absolute. It is
not for the Courts to rewrite the law or
create exceptions to a legislative mandate
that is unequivocal. While the Courts are
the guardians of individual liberties, they
are also bound to uphold the rule of law
and respect the boundaries set by the
legislature.

16. The argument that the nature of the
offence
should
be
considered
in
determining whether anticipatory bail can
be
granted,
despite
the
statutory
prohibition, is untenable. Such an approach
would effectively render the legislative bar
meaningless and open the door to judicial
overreach.

17.
Any
perceived
hardship
or
injustice that may arise from the strict
application of the statutory bar is a matter
for the legislature to address through amendment.
It is not for the Courts to fill perceived gaps in the
law by exercising discretion contrary to the
express provisions of the statute. However, as
settled by the Supreme Court in the case of Prithvi
Raj Chauhan (supra), the Court in its inherent
jurisdiction under Section 482 Cr.P.C. or under
Article 226/227 of the Constitution of India can
still grant interim protection from arrest if prima
facie, the offences alleged are not made out from
the contents of the complaint. Further, even an
interim bail can be granted by a Court, in
appropriate cases, pending a regular bail
application.

18.
In
light
of
the
clear
and
unequivocal wording of Section 438 of the
Cr.P.C.,
which
prohibits
filing
of
anticipatory bail application in cases where
the offence is punishable by death sentence,
this Court is of the opinion that no judicial
discretion can be exercised to entertain
anticipatory bail application in such cases.

19. The answer to the question
referred to this Bench is, therefore, in the
negative. The Courts cannot entertain
anticipatory bail application in cases where
the State amendment prohibits it.

20.
The
reference
is
answered
accordingly. The matter is directed to be
placed before the learned Single Judge,
who will decide the matter in accordance
with the observations made by this Court.
----------
(2024) 10 ILRA 755
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.10.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Misc. Bail Application No. 2171 of 2024

Yash Pratap Singh ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Manish Kumar Tripathi, Aditya Vikram
Singh

Counsel for the Opposite Party:
G.A.

A.
Criminal
Law-Code
of
Criminal
Procedure, 1973-Sections 309 & 439- Trial
Court has conducted examination of the victim
on 6 dates ranging between a period of 21⁄2
months, whereas examination of a witness is to
be recorded on a day-to-day basis- When the
victim was fully supporting the prosecution case,
756 INDIAN LAW REPORTS ALLAHABAD SERIES
neither there was any occasion for the public
prosecutor to make a request for declaring him
to be hostile nor was there any occasion for the
trial Court to declare him to be hostile. It prima
facie shows that the public prosecutor has acted
under influence of the accused persons so as to
give undue advantage to them- The approach
adopted by the trial Court in accepting the
request of the public prosecutor to declare the
victim to be hostile, even when he was fully
supporting the prosecution case, speaks volume
about the conduct of the presiding officer of the
Court.

B. Legal Remembrancer / Principal Secretary
(Law) is directed to look into this matter and
take
suitable
action
against
the
public
prosecutor in the aforesaid case in accordance
with law- Sessions Judge, Lucknow is directed
to transfer Sessions Trial from the Court of
Additional Sessions Judge, Court No. 16,
Lucknow to some other Court to ensure that the
trial is conduct fairly, without any undue
influence at the behest of the accused persons.

Bail application rejected. (E-15)

List of Cases cited:

1. Raj Deo Sharma (II) Vs St. of Bihar: (1999) 7
SCC 604

2. St. of U.P. Vs Shambhu Nath Singh: (2001) 4
SCC 667

3. Doongar Singh Vs St. of Raj.: (2018) 13 SCC 741

4. Ramesh Vs St. of Har.: (2017) 1 SCC 529

5. Jaikun Nisha Vs St. of U.P., 2024 SCC OnLine
All 5337

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Manish Kumar Tripathi,
the learned counsel for the applicant and
Sri Anant Pratap Singh, the learned AGA
for the State and perused the records.

2. This is the second application
seeking release of the applicant on bail in
Case Crime No. 668 of 2022, under
Sections 147, 148, 307, 323, 504, 506 IPC,
Police Station Vibhuti Khand, District
Lucknow.

3. The aforesaid case has been
registered on the basis of an F.I.R. lodged
on 16.10.2022 at 16:38 hrs. against three
named persons, including the applicant, and
an unknown person stating that all the
accused persons, carrying hockey-stick,
baseball-bat and iron rod, had attacked the
informant's nephew, causing serious injury
to him. The injured was being treated in the
Intensive Care Unit of Medanta Hospital.

4. The State has filed a counteraffidavit against the first bail application
No. 14054 of 2022, annexing therewith the
complete medical-papers of the victim
showing that initially he was taken to Ram
Manohar Lohia Hospital, where he was
managed conservatively and thereafter he
was shifted to Medanta Hospital. He had
complaints of pain and swelling over left
eye, pain and swelling over left cheek and
contused lacerated wound on head occipital
region. He was bleeding from left ear.

5. In the statement of the victim
recorded under section 161, Cr.P.C. he
categorically stated that co-accused Aryan
Srivastava had started arguing with him
and the applicant hit him with a baseball
bat. Aryan Srivastava has been granted bail
by means of an order dated 05.11.2022
passed by the Sessions Judge, Lucknow.

6. The first application No. 14054 of
2022 was rejected by means of an order
dated
26.07.2023
after
taking
into
consideration the nature of allegations, the
nature of injury suffered by the victim and
the recovery made from the applicant. This
Court had also considered the fact that the
10 All. Yash Pratap Singh Vs. State of U.P.
757
applicant is a 19 years old student, who was
preparing for competitive examination, he
had appeared in NEET (UG), 2022
Examination and he had achieved good
percentage. This Court had also considered
the fact that the only allegation against the
co-accused Aryan Srivastava was that he
had started an argument with the victim,
whereas there is a specific allegation
against the applicant that he had assaulted
the victim with a baseball-bat on his head,
therefore, the applicant is not entitled to be
released on bail on the ground of parity.

7. The second application has been
filed on the ground that the victim has not
supported the prosecution case in his
statement recorded by the trial Court. A
copy of the statement of the victim has
been brought on record along with a
supplementary affidavit dated 11.09.2024.
A perusal of the statement of the victim,
who has been examined as PW-2, indicates
that the victim has fully supported the
prosecution case in his examination-inchief which runs into more than five pages.
However, when the victim was fully
supporting the prosecution case and not
even two pages of examination-in-chief of
the victim had been recorded, the learned
public prosecutor made a request for
declaring the witness to be hostile and
strangely, the trial Court accepted this
request. Even after accepting the request
for declaring the victim to be hostile, his
examination-in-chief
continued
to
be
recorded and he kept on fully supporting
the prosecution case in his examination-inchief recorded on 15.05.2024. Thereafter
PW-2 was cross-examined by the counsel
for co-accused Nishant which remained
inconclusive and it was resumed after 15
days on 30.05.2024 and in that part of the
cross-examination, no major discrepancy
came to light in the statement of the victim.

8. Further cross-examination of the
victim was conducted on 11.06.2024, i.e.
after 11 days and PW-2 was crossexamined by the counsel for the applicant
on
12.06.2024.
During
this
crossexamination, the victim changed his stand
and stated that although the applicant was
present at the place of incident, he had not
assaulted him. Further cross-examination of
the victim was recorded on 08.07.2024, i.e.
after 25 days, when he was cross-examined
by the counsel for co-accused Anshuman
Mishra and then it was resumed on
31.07.2024, i.e. after 23 days.

9. The learned counsel for the
applicant stated that as the victim has
turned hostile, the applicant is entitled to be
released on bail. He has further submitted
that all the other co-accused persons have
already been granted bail.

10. Per contra, the learned AGA has
vehemently opposed the bail application
and he has submitted that the co-accused
persons have been granted bail prior to
rejection of the first bail application of the
applicant and this fact was considered by
this Court while rejecting the first bail
application of the applicant and this Court
was of the view that the role assigned to the
applicant was not at par with the role
assigned to the other co-accused persons
and, therefore, the applicant is not entitled
to be granted bail on the ground of parity
and I find force in this submission.

11. So far as the ground of the victim
turned hostile is concerned, the learned
AGA has submitted that a bare perusal of
the statement of the victim recorded by the
trial Court indicates that the victim was
fully supporting the prosecution case in his
statement recorded on 15.05.2024 yet the
Public Prosecutor was in an apparent haste
758 INDIAN LAW REPORTS ALLAHABAD SERIES
to support the accused persons and,
therefore, he made a request to the Court
whilst the victim was supporting the
prosecution case to declare him hostile and
strangely this request of the public
prosecutor was accepted by the trial Court.
It indicates that the prosecution is being
influenced by the accused persons even
when the applicant is in custody and in case
the applicant is released on bail, the
probability of prosecution witnesses and
conduct of trial being influenced by the
accused persons will increase many folds.

12. In the present case, the trial Court
has conducted examination of the victim on
6 dates ranging between a period of 21⁄2
months, whereas examination of a witness
is to be recorded on a day-to-day basis.

13. Section 309 Cr.P.C. provides as
follows:-

"309. Power to postpone or
adjourn proceedings.-

(1) In every inquiry or trial the
proceedings shall be continued from dayto- 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 that when the inquiry or trial
relates to an offence under Section 376,
Section 376-A, Section 376-AB, Section
376- B, Section 376-C, Section 376-D,
Section 376-DA or Section 376-DB of the
Indian Penal Code (45 of 1860), the
inquiry or trial shall be completed within a
period of two months from the date of filing
of the charge sheet.
(2) If the Court, after taking cognizance of
an offence, or commencement of trial, finds
it necessary or advisable to postpone the
commencement of, or adjourn, any inquiry
or trial, it may, from time to time, for
reasons to be recorded, postpone or
adjourn the same on such terms as it thinks
fit, for such time as it considers reasonable,
and may by a warrant remand the accused
if in custody:

Provided that no Magistrate shall
remand an accused person to custody
under this section for a term exceeding
fifteen days at a time:

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:

Provided
also
that
no
adjournment shall be granted for the
purpose only of enabling the accused
person to show cause against the sentence
proposed to be imposed on him:

Provided also that-

(a) no adjournment shall be
granted at the 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 cross-examine 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
crossexamination of the witness, as the case
may be.

Explanation
1.-If
sufficient
evidence has been obtained to raise a
suspicion that the accused may have
committed an offence, and it appears likely
that further evidence may be obtained by a
10 All. Yash Pratap Singh Vs. State of U.P.
759
remand, this is a reasonable cause for a
remand.

Explanation 2.-The terms on
which an adjournment or postponement
may be granted include, in appropriate
cases, the payment of costs by the
prosecution or the accused.

(Emphasis added)

14. In Raj Deo Sharma (II) v. State
of Bihar: (1999) 7 SCC 604, the Hon'ble
Supreme Court stated that "We cannot
permit the trial Court to flout the said
mandate of Parliament unless the Court has
very cogent and strong reasons. No Court
has permission to adjourn examination of
witnesses who are in attendance beyond
the next working day" (emphasis added).

15. In State of U.P. v. Shambhu
Nath Singh: (2001) 4 SCC 667, the
Hon'ble Supreme Court explained the
legislative mandate contained in Section
309 Cr.P.C. in the following words:-

"11.
The
first
sub-section
mandates on the trial Courts that the
proceedings shall be held expeditiously but
the words "as expeditiously as possible"
have provided some play at the joints and it
is through such play that delay often creeps
in the trials. Even so, the next limb of the
sub-section sounded for a more vigorous
stance to be adopted by the Court at a
further advanced stage of the trial. That
stage is when examination of the witnesses
begins. The legislature which diluted the
vigour of the mandate contained in the
initial limb of the sub-section by using the
words "as expeditiously as possible" has
chosen to make the requirement for the next
stage (when examination of the witnesses
has started) to be quite stern. Once the case
reaches that stage the statutory command
is that such examination "shall be
continued from day to day until all the
witnesses
in
attendance
have
been
examined". The solitary exception to the
said stringent rule is, if the Court finds that
adjournment "beyond the following day to
be necessary" the same can be granted for
which a condition is imposed on the Court
that reasons for the same should be
recorded. Even this dilution has been taken
away when witnesses are in attendance
before the Court. In such situation the
Court is not given any power to adjourn the
case except in the extreme contingency for
which the second proviso to sub-section (2)
has imposed another condition,

"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".

(emphasis in original)

12. Thus, the legal position is that
once examination of witnesses started, the
Court has to continue the trial from day to
day until all witnesses in attendance have
been examined (except those whom the
party has given up). The Court has to
record reasons for deviating from the said
course. Even that is forbidden when
witnesses are present in Court, as the
requirement then is that the Court has to
examine them. Only if there are "special
reasons", which reasons should find a place
in the order for adjournment, that alone can
confer jurisdiction on the Court to adjourn
the case without examination of witnesses
who are present in Court.

13. Now, we are distressed to
note that it is almost a common practice
and regular occurrence that trial Courts
flout the said command with impunity.
Even when witnesses are present, cases are
adjourned on far less serious reasons or
even on flippant grounds. Adjournments
760 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

16. This High Court issued a Circular
Letter
No.
20/Admin.
'G-II'
Dated
14.05.2015, which provides as follows:-

In
continuation
of
marginally
quoted
Court's
earlier
Circular Letters and
in the light of Hon'ble
Apex Court's orders
passed in the cases of
Akil alias Javed VS.
State
of
NCT
of
Delhi,
reported
in
2012
(11)
SCALE
709, in paras 27 to 36:
State
of
UP
Vs.
Shambhu Nath Singh
and others, reported
in 2001 (4) SCC 667;
Raj Deo Sharma Vs.
State of Bihar, 1999
Cr.L.J. 4541 and Lt.
Col. SJ. Chaudhari
Vs.
State
(Delhi)
Administration,
(1984) 1 SCC 722, I
am directed to state
that the High Court is
noticing
disturbing
trend
in
criminal
trials, where Sessions
cases
are
being
adjourned, in some
1.
C.L.
No.
152/VIII-b13,
28.10.1974
2. C.L. No. 5850/Admn
„G‟,
23.11.1992
3.
C.L.
No.
54/VIIb-18,
06.12.2000
4.
C.L.
No.
8/VIIb-18,
07.02.2000
5. C.L. No. C72/1990,
26.07.1990

cases
to
suit
convenience
of
counsels or because
the prosecution or the
defence is not fully
ready and considers it
necessary to draw the
attention of all the
Sessions Judges and
Additional
Sessions
Judges once again to
the
provision
of
Section 309 of the
Code
of
Criminal
Procedure, 1973 and
directs 73 them to
adhere
strictly
to
these provisions and
instructions
given
below while granting
adjournment
in
Sessions Cases:

(1) Trial Judges are reminded of
the need to comply with Section 309 of the
Code in letter and spirit.

(2) 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: (Section 309 (1) Cr.P.C.]
* * *"

17. In Doongar Singh v. State of
Rajasthan: (2018) 13 SCC 741, the
Hon'ble Supreme Court reiterated that: -

"8. In spite of repeated directions
of this Court, the situation appears to have
10 All. Yash Pratap Singh Vs. State of U.P.
761
remained unremedied. We hope that the
Presiding Officers of the trial Courts
conducting criminal trials will be mindful
of not giving such adjournments after
commencement of the evidence in serious
criminal cases. We are also of the view that
it is necessary in the interest of justice that
the eyewitnesses are examined by the
prosecution at the earliest.
* * *

10. To conclude:

10.1. The trial Courts must carry
out the mandate of Section 309 CrPC as
reiterated in judgments of this Court, inter
alia, in State of U.P. v. Shambhu Nath
Singh, (2001) 4 SCC 667, Mohd. Khalid v.
State of W.B.: (2002) 7 SCC 334 and
Vinod Kumar v. State of Punjab, (2015) 3
SCC 220.

10.2. The eyewitnesses must be
examined by the prosecution as soon as
possible.

10.3. Statements of eyewitnesses
should invariably be recorded under
Section 164 CrPC as per procedure
prescribed thereunder."

18. In Ramesh v. State of Haryana:
(2017) 1 SCC 529, the Hon'ble Supreme
Court expressed its concern about the
culture of witnesses turning hostile, in the
following words: -

"39. We find that it is becoming a
common phenomenon, almost a regular
feature, that in criminal cases witnesses
turn hostile. There could be various
reasons for this behaviour or attitude of the
witnesses. It is possible that when the
statements of such witnesses were recorded
under Section 161 of the Code of Criminal
Procedure, 1973 by the police during
investigation,
the
investigating
officer
forced them to make such statements and,
therefore, they resiled therefrom while
deposing in the Court and justifiably so.
However, this is no longer the reason in
most of the cases. This trend of witnesses
turning hostile is due to various other
factors. It may be fear of deposing against
the
accused/delinquent
or
political
pressure or pressure of other family
members
or
other
such
sociological
factors. It is also possible that witnesses
are
corrupted
with
monetary
considerations.
* * *

44. On the analysis of various
cases, the following reasons can be
discerned which make witnesses retracting
their statements before the Court and
turning hostile:

(i) Threat/Intimidation.

(ii) Inducement by various means.

(iii) Use of muscle and money
power by the accused.

(iv) Use of stock witnesses.

(v) Protracted trials.

(vi)
Hassles
faced
by
the
witnesses during investigation and trial.

(vii) Non-existence of any clearcut legislation to check hostility of witness.

45. Threat and intimidation has
been one of the major causes for the
hostility
of
witnesses.
Bentham
said:"witnesses are the eyes and ears of
justice". When the witnesses are not able to
depose correctly in the Court of law, it
results in low rate of conviction and many
times even hardened criminals escape the
conviction. It shakes public confidence in
the criminal justice delivery system. It is for
this reason there has been a lot of
discussion on witness protection and from
various quarters demand is made for the
State to play a definite role in coming out
with witness protection programme, at
least in sensitive cases involving those in
power, who have political patronage and
could wield muscle and money power, to
762 INDIAN LAW REPORTS ALLAHABAD SERIES
avert trial getting tainted and derailed and
truth becoming a casualty. A stern and
emphatic message to this effect was given
in Zahira Habibullah Sheikh (5) v. State of
Gujarat, (2006) 3 SCC 374 as well."

19. In Jaikun Nisha v. State of U.P.,
2024 SCC OnLine All 5337, this Court has
taken into consideration that aforesaid
provisions of law and has held that the long
period consumed by the trial Court in
recording the statement of a witness, during
which period the witness sided with the
accused,
is
very
disturbing.
Cross-
examination of prosecution witnesses needs
to be recorded on a day-to- day basis to
avoid the possibility of witnesses being
influenced.

20. What prima facie appears from the
material available before the Court at this
stage is that three named accused persons,
including the applicant and one unknown
person, carrying hockey stick, baseball bat
and iron rods had attacked the victim
causing serious injuries to him and he had
to remain admitted to Intensive Care Unit
of Medanta Hospital. The victim was fully
supporting the prosecution case in his
statement recorded on 15.05.2024 yet the
public prosecutor made a request for
declaring the victim to be hostile, which
request was strangely accepted by the trial
Court.

21. Although Section 309 Cr.P.C.
provides
that
proceedings
should
continue
from
day-to-day
until
all
witnesses have been examined yet the
statement of the victim has been recorded
on 15.05.2024, 11.06.2024, 12.06.2024,
08.07.2024 and 31.07.2024. Apparently,
the victim has supported the prosecution
case in his statement recorded on all the
dates, except in the cross examination
conducted by the Counsel for the
applicant on 12.06.2024.

22. The long time consumed by the
trial Court in recording statement of the
victim and adjournment the case on
numerous occasions for long durations
has given the accused persons an
opportunity to influence the victim.

23. When the victim was fully
supporting the prosecution case, neither
there was any occasion for the public
prosecutor
to
make
a
request
for
declaring him to be hostile nor was there
any occasion for the trial Court to declare
him to be hostile. It prima facie shows
that the public prosecutor has acted under
influence of the accused persons so as to
give undue advantage to them.

24. The approach adopted by the
trial Court in accepting the request of the
public prosecutor to declare the victim to
be hostile, even when he was fully
supporting the prosecution case, speaks
volume
about
the
conduct
of
the
presiding officer of the Court.

25.
When
the
victim
is
being
influenced at the behest of the accused
persons even while the applicant is in
custody, the possibility of the witnesses
being influenced in case of release of the
applicant on bail is very grave. In these
circumstances, this Court finds no good
ground to enlarge the applicant on bail.

26. The second bail application of the
applicant is accordingly rejected.

27. Keeping in view the aforesaid
conduct of the public prosecutor in making
a request for declaring PW-2 in Sessions
Case No. 747 of 2023 in the Court of
10 All. Ram Prakash Giri Vs. Rakesh Giri & Ors.
763
Additional Sessions Judge, Court No. 16,
Lucknow to be hostile even when he was
fully supporting the prosecution case, the
Legal Remembrancer / Principal Secretary
(Law) is directed to look into this matter
and take suitable action against the public
prosecutor
in
the
aforesaid
case
in
accordance with law.

28. Further, keeping in view the fact
that the presiding officer of the Court of the
Additional Sessions Judge, Court No. 16,
Lucknow has accepted the request made by
the public prosecutor and declared PW-2 to
be hostile even while PW-2 was fully
supporting the case and he has fixed
numerous dates for cross-examination of
the PW-2 at long intervals, during which
the victim changed his statement to support
the applicant, the Sessions Judge, Lucknow
is directed to transfer Sessions Trial No.
747 of 2023 from the Court of Additional
Sessions Judge, Court No. 16, Lucknow to
some other Court to ensure that the trial is
conduct fairly, without any undue influence
at the behest of the accused persons.

29. The Senior Registrar of this Court
is directed to communicate this order to the
Legal Remembrancer/Principal Secretary
(Law) and the Sessions Judge, Lucknow to
ensure its compliance. Let a copy of this
order be sent to the Hon'ble Administrative
Judge of Lucknow Judgeship also for
information.
----------
(2024) 10 ILRA 763
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.10.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Matters Under Article 227 No. 4668 of 2024
Ram Prakash Giri ...Petitioner
Versus
Rakesh Giri & Ors. ...Respondents

Counsel for the Petitioner:
Hemant Kumar Mishra, Abhishek Mishra,
Arti Ganguly

Counsel for the Respondents:

A. Civil Law - Constitution of India,1950Article 227-Civil Procedure Code,1908Order
39
rule
2-A,
section
80-the
petitioner filed a case challenging the
validity of an interim order passed by Civil
Judge-the interim order arose under
Order 39 Rule 2-A of CPC in a pending
suit -The Civil judge ruled that the
petitioner did not comply with the
mandatory
section
80
CPC,
which
requires a notice to be served before
instituting legal action against public
servants or the government-The High
court
ruled
that
the
mandatory
procedure u/s 80 CPC does not apply if
the suit is against individuals acting in
their private capacity-The interim order
was
set
aside-the
civil
judge
was
directed to proceed further with the
case while issuing notices appropriately
as per law.(Para 1 to 10)

The writ petition is allowed. (E-6)

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. याधचकाकताड के ववद्वान अधिवक्ता श्री
हेमन्त कुमार समश्रा को सुना तथा पिावली का
अवलोकन ककया।

2. िारतीय संवविान के अनुच्छेि 227 के
अन्तगडत प्रस्तुत इस याधचका द्वारा याधचकाकताड
ने ववद्वान ससववल जज (अवर खंड), गोंडा द्वारा
प्रकीणड वाि संख्या 543 सन 2024 में पाररत आिेश
दिनांक 09.09.2024 की वैिता को चुनौती िी है।