Allahabad High Court

HON'BLE NALIN KUMAR SRIVASTAVA, J.

1. The present application U/S 528 of BNSS has been filed by the applicant - Adil to set aside / quash the impugned order dated 3.9.2025 passed by Special Judge, (Rape & POCSO Act) / 1st Additional Sessions Judge, Etah in G.S.T. No. 38 of 2019, arising out of case crime no. 167 of 2019, under Section 2/3 U.P. Gangster and Prevention of Anti Social Activities Act, Police Station Aliganj, District Etah whereby application under Section 311 CrPC moved by the applicant was rejected.

2. Heard Shri Mohd. Nadeem, learned counsel for the applicant as well as the learned AGA for the State and perused the record.

3. An application u/s 311 of Cr.P.C. was filed by the applicant / accused to recall PW-3/ Constable Chandraveer Singh and PW-4/ Rajesh Singh for cross-examination but the same was rejected by the trial court and the opportunity for cross-examination was closed.

4. It is submitted by the learned counsel for the applicant that the instant matter pertains to gangster act and the examination of chief of PW-3 was recorded on

10.4.2024 and subsequently evidence of PW-4 was recorded on 22.7.2024 but on both the occasions learned counsel for the applicant / accused could not appear before the Court to cross-examine the said witnesses due to illness. It is also submitted that the order passed on the application under Section 311 Cr.P.C. is illegal. It is further submitted that if the prayer made in the 2 NA528 No. 41510 of 2025 application is not accepted, the applicant would be deprived of his valuable right for fair trial. It is also submitted that an application under Section 311 Cr.P.C. can be filed at any stage of trial before delivery of final judgement. In support of this submission he has relied upon a judgement of the Hon'ble Supreme court in the case of Manu Devi vs State of Rajasthan & Anr., (2019) 6 SCC 203 wherein the Hon'ble Supreme Court has held that the discretionary powers like those under Section 311 CrPC are essentially intended to ensure that every necessary and appropriate measure is taken by the Court to keep the record straight and to clear any ambiguity insofar as the evidence is concerned as also to ensure that no prejudice is caused to anyone.

5. Learned AGA vehemently opposed the prayer and submitted that there is no illegality or infirmity in the impugned orders warranting interference by this Court.

6. I have considered the rival submissions made by the learned counsel for the parties and gone through the entire record including the impugned orders.

7. A fair trial is the main object of criminal procedure, which may entail the interests of the accused, the victim and of the society and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned and the same must be ensured as this is a constitutional as well as human right. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, in the facts and circumstances of the case and to ensure fair trial, in my view, the court must be zealous in ensuring that there is no denial of fair trial.

8. The Hon'ble Apex Court in State of Haryana vs. Ram Mehar, (2016) 8 SCC 762 has held that interests of victim / the collective (represented through the prosecution) and accused must be balanced. Concept of fair trial cannot be limitlessly stretched to permit recall of witnesses endlessly on ground of magnanimity, etc.

9. In the case of Swapan Kumar Chatterjee vs. CBI, 3 NA528 No. 41510 of 2025 (2019) 9 SCC 340 it has been held by the Hon'ble Supreme Court that power under Section 311 CrPC is not to be exercised if application has been filed as abuse of process of law. Thus, where prosecution evidence has been closed long back and reasons for non-examination of witness earlier are not satisfactory, re-summoning of witness at belated stage would cause great prejudice to accused and should not be allowed. Similarly, court should not encourage filing of successive applications for recall of a witness under Section 311.

10. In the present matter from a perusal of the record it appears that on both dates i.e. 10.4.2024 and

22.7.2024 when the prosecution witnesses PW-3 and PW-4 were present before the Court, cross-examination was not conducted by the learned counsel for the accused / applicant, hence, the trial court closed the opportunity of cross-examination. Subsequently an application under Section 311 CrPC was moved by the accused / applicant to recall PW-3 and PW-4 for their further evidence which was rejected vide impugned order dated 3.9.2025 by the trial court.

11. The instant matter pertains to U.P. Gangster Act and to cross-examine PW-3, who was actually produced as secondary evidence for I.O. Akhilesh Kumar Tiwari and PW- 4 Rajesh Singh is the father of the victim. Thus, they are the material witnesses in this case and if the opportunity to cross-examine the said witnesses is not granted it will adversely affect the defence of the accused. The application under Section 311 CrPC moved by the accused applicant has been rejected only on the ground that no medical certificate was submitted by the learned counsel for the applicant / accused in support of his illness. Hence, in my view, if the applicant is not afforded appropriate and sufficient opportunity to cross- examine the witness, his valuable right to defend himself would be prejudiced. While passing the impugned order, the trial court without taking into consideration the principles of natural justice and fair trial rejected the application moved by the applicant. Hence, the present application is liable to be allowed and the order dated

3.9.2025 is liable to be set aside. 4 NA528 No. 41510 of 2025

12. Accordingly, the application is allowed and the order dated 3.9.2025 passed by Special Judge, (Rape & POCSO Act) / 1st Additional Sessions Judge, Etah in G.S.T. No. 38 of 2019, arising out of case crime no. 167 of 2019, under Section 2/3 U.P. Gangster and Prevention of Anti Social Activities Act, Police Station Aliganj, District Etah is hereby set aside and the trial court is directed to summon PW-3/ Constable Chandraveer Singh and PW-4/ Rajesh Singh for cross examination, provided the applicant cooperates with the trial court and all expenses of the witnesses, whether private or public, shall be borne by the accused / applicant and he will not seek adjournment on any ground whatsoever if the witnesses are present in the Court. The trial court is directed to ensure that the witnesses shall be summoned after fixing short dates or if possible within a period of one week from the date of production of certified copy of this order before it and the hearing shall not be adjourned on the request of accused / applicant and as far as possible cross-examination of a witness on a particular date shall be concluded by the accused / applicant. October 29, 2025 (Nalin Kumar Srivastava,J.)

HON'BLE NALIN KUMAR SRIVASTAVA, J.

1. The present application U/S 528 of BNSS has been filed by the applicant - Adil to set aside / quash the impugned order dated 3.9.2025 passed by Special Judge, (Rape & POCSO Act) / 1st Additional Sessions Judge, Etah in G.S.T. No. 38 of 2019, arising out of case crime no. 167 of 2019, under Section 2/3 U.P. Gangster and Prevention of Anti Social Activities Act, Police Station Aliganj, District Etah whereby application under Section 311 CrPC moved by the applicant was rejected.

2. Heard Shri Mohd. Nadeem, learned counsel for the applicant as well as the learned AGA for the State and perused the record.

3. An application u/s 311 of Cr.P.C. was filed by the applicant / accused to recall PW-3/ Constable Chandraveer Singh and PW-4/ Rajesh Singh for cross-examination but the same was rejected by the trial court and the opportunity for cross-examination was closed.

4. It is submitted by the learned counsel for the applicant that the instant matter pertains to gangster act and the examination of chief of PW-3 was recorded on

10.4.2024 and subsequently evidence of PW-4 was recorded on 22.7.2024 but on both the occasions learned counsel for the applicant / accused could not appear before the Court to cross-examine the said witnesses due to illness. It is also submitted that the order passed on the application under Section 311 Cr.P.C. is illegal. It is further submitted that if the prayer made in the 2 NA528 No. 41510 of 2025 application is not accepted, the applicant would be deprived of his valuable right for fair trial. It is also submitted that an application under Section 311 Cr.P.C. can be filed at any stage of trial before delivery of final judgement. In support of this submission he has relied upon a judgement of the Hon'ble Supreme court in the case of Manu Devi vs State of Rajasthan & Anr., (2019) 6 SCC 203 wherein the Hon'ble Supreme Court has held that the discretionary powers like those under Section 311 CrPC are essentially intended to ensure that every necessary and appropriate measure is taken by the Court to keep the record straight and to clear any ambiguity insofar as the evidence is concerned as also to ensure that no prejudice is caused to anyone.

5. Learned AGA vehemently opposed the prayer and submitted that there is no illegality or infirmity in the impugned orders warranting interference by this Court.

6. I have considered the rival submissions made by the learned counsel for the parties and gone through the entire record including the impugned orders.

7. A fair trial is the main object of criminal procedure, which may entail the interests of the accused, the victim and of the society and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned and the same must be ensured as this is a constitutional as well as human right. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, in the facts and circumstances of the case and to ensure fair trial, in my view, the court must be zealous in ensuring that there is no denial of fair trial.

8. The Hon'ble Apex Court in State of Haryana vs. Ram Mehar, (2016) 8 SCC 762 has held that interests of victim / the collective (represented through the prosecution) and accused must be balanced. Concept of fair trial cannot be limitlessly stretched to permit recall of witnesses endlessly on ground of magnanimity, etc.

9. In the case of Swapan Kumar Chatterjee vs. CBI, 3 NA528 No. 41510 of 2025 (2019) 9 SCC 340 it has been held by the Hon'ble Supreme Court that power under Section 311 CrPC is not to be exercised if application has been filed as abuse of process of law. Thus, where prosecution evidence has been closed long back and reasons for non-examination of witness earlier are not satisfactory, re-summoning of witness at belated stage would cause great prejudice to accused and should not be allowed. Similarly, court should not encourage filing of successive applications for recall of a witness under Section 311.

10. In the present matter from a perusal of the record it appears that on both dates i.e. 10.4.2024 and

22.7.2024 when the prosecution witnesses PW-3 and PW-4 were present before the Court, cross-examination was not conducted by the learned counsel for the accused / applicant, hence, the trial court closed the opportunity of cross-examination. Subsequently an application under Section 311 CrPC was moved by the accused / applicant to recall PW-3 and PW-4 for their further evidence which was rejected vide impugned order dated 3.9.2025 by the trial court.

11. The instant matter pertains to U.P. Gangster Act and to cross-examine PW-3, who was actually produced as secondary evidence for I.O. Akhilesh Kumar Tiwari and PW- 4 Rajesh Singh is the father of the victim. Thus, they are the material witnesses in this case and if the opportunity to cross-examine the said witnesses is not granted it will adversely affect the defence of the accused. The application under Section 311 CrPC moved by the accused applicant has been rejected only on the ground that no medical certificate was submitted by the learned counsel for the applicant / accused in support of his illness. Hence, in my view, if the applicant is not afforded appropriate and sufficient opportunity to cross- examine the witness, his valuable right to defend himself would be prejudiced. While passing the impugned order, the trial court without taking into consideration the principles of natural justice and fair trial rejected the application moved by the applicant. Hence, the present application is liable to be allowed and the order dated

3.9.2025 is liable to be set aside. 4 NA528 No. 41510 of 2025

12. Accordingly, the application is allowed and the order dated 3.9.2025 passed by Special Judge, (Rape & POCSO Act) / 1st Additional Sessions Judge, Etah in G.S.T. No. 38 of 2019, arising out of case crime no. 167 of 2019, under Section 2/3 U.P. Gangster and Prevention of Anti Social Activities Act, Police Station Aliganj, District Etah is hereby set aside and the trial court is directed to summon PW-3/ Constable Chandraveer Singh and PW-4/ Rajesh Singh for cross examination, provided the applicant cooperates with the trial court and all expenses of the witnesses, whether private or public, shall be borne by the accused / applicant and he will not seek adjournment on any ground whatsoever if the witnesses are present in the Court. The trial court is directed to ensure that the witnesses shall be summoned after fixing short dates or if possible within a period of one week from the date of production of certified copy of this order before it and the hearing shall not be adjourned on the request of accused / applicant and as far as possible cross-examination of a witness on a particular date shall be concluded by the accused / applicant. October 29, 2025 (Nalin Kumar Srivastava,J.)