High Court · 2025
Case Details
Acts & Sections
Cited in this judgment
4. Learned counsel for applicant submits that during the pendency of trial the opportunity of applicant to cross-examine PW-7 Prashant Tyagi was extinguished by court below vide order dated
16.01.2025. Accordingly applicant filed an application dated
27.01.2025 under Section 311 Cr.P.C. seeking recall of PW-7 for his cross-examination on behalf of accused applicant. However, aforementioned application filed by accused applicant was rejected by court below by means of order impugned dated 18.02.2025.
5. Thus feeling aggrieved by the above order dated 18.02.2025, applicant has now approached this Court by means of present application under Section 528 BNSS.
6. Learned counsel for applicant submits that order impugned in the present application is wholly illegal. Consequently, the same is liable to be quashed by this Court. In the submission of learned counsel for applicant the court below has not decided the application under Section 311 Cr.P.C. filed by the accused applicant in the light of parameters laid down by Apex Court in the case of Raja Ram Prasad Yadav Vs. State of Bihar and another, (2013) 14 SCC 461, wherein the Apex Court has laid down the parameters which are required to be observed to decide the bona fide of an applicant in filing an application under Section 311 Cr.P.C.
7. Referring to the judgment of Supreme Court in Varsha Garg Vs. State of M.P. & Ors., 2022 SCC Online SC 986, the learned counsel for applicant submits that the Apex Court in the aforementioned judgment has already observed that trial before court below is that of an accused. As such the trial should be free and fair trial. It is then submitted by the learned counsel for applicant that in criminal jurisprudence an accused has the right to cross-examine prosecution witnesses. It is also an established rule of evidence that no amount of evidence can be looked into unless it comes out unscratched from the furnace of cross-examination. However, in the present case, merely the deposition i.e. statement- in-chief of PW-7 shall be read against applicant inasmuch as the said witness has not been cross-examined on behalf of accused applicant.
8. According to the learned counsel for applicant principles of natural justice demand that justice should not only be done but should also seen to be done. The present case is a case of no cross- examination of PW-7 on behalf of accused applicant and not further cross-examination. The court below while passing order impugned has clearly ignored the above. As such the present application is liable to be allowed by this Court.
9. Per contra, the learned AGA representing State-opposite party-1 has opposed the present application and he has supported the order impugned. He submits that the court below has rejected the application under Section 311 Cr.P.C. filed by accused applicant by assigning cogent reasons. Since the reason/findings recorded by court below in support of conclusion drawn could not be dislodged by learned counsel for applicant therefore conclusion drawn by court below is not liable to be altered. As such no indulgence is warranted by this Court in present application.
10. On the other hand, Mr. Pankaj Dwivedi, the learned counsel representing first informant has also opposed the present application. He has adopted the submissions urged by the learned AGA. Referring to the order impugned the learned counsel representing first informant/opposite party-2 submits that no indulgence is warranted by this Court. However he could not dislodge the factual and legal submissions urged by learned counsel for applicant with reference to record at this stage.
11. Having heard the learned counsel for applicant, the learned AGA representing State-opposite party-1 and learned counsel representing first informant-opposite party-2 and upon perusal of record, this Court finds that it is an admitted fact between the parties that no cross-examination of PW-7 could take place on behalf of accused applicant Kaptan Singh on 16.01.2025. Principles of natural justice require that justice should not only be done but also seen to be done. In view of above the applicant was entitled to one opportunity to cross-examine PW-7. Even though no cross-examination of PW-7 has taken place on behalf of accused applicant yet the deposition of PW-7 shall be read against applicant which cannot be said to be fair. The Apex Court in the case of Rajaram Prasad Yadav (supra) has laid down detailed parameters which are required to be observed while deciding an application under Section 311 Cr.P.C. However, the court below has rejected the application under Section 311 Cr.P.C. filed by applicant on the basis of stereotype findings without going into the facts and circumstances of the case. In view of above, interest of justice require that one more opportunity should be granted to the applicant to cross-examine PW-7. As a result, present application succeeds and is liable to be allowed.
12. It is accordingly allowed.
13. The order impugned dated 18.02.2025 is hereby quashed. The applicant shall deposit cost of Rs.5,000/- before the court below within a period of one month from today. In case the cost as indicated above is deposited by applicant before the court below within the time period mentioned above, Court below shall issue summons to PW-7 and recall him for further cross-examination on behalf of accused applicant. Upon appearance of PW-7 the cost deposited by applicant shall be paid to him.
14. However, under this order only one opportunity shall be afforded to the accused applicant to cross-examine PW-7 either personally or though V.C. However, if PW-7 appears before court below and his cross-examination could not take place on behalf of accused applicant on any ground whatsoever, then the rights of accused applicant to cross-examine PW-7 under this order shall stand extinguished. In case the cost as indicated above is not deposited within the time period indicated above, the present application shall stand dismissed without further reference to the Court. Order Date :- 8.5.2025 R.S. Tiwari RAVI SHANKAR TIWARI High Court of Judicature at Allahabad
4. Learned counsel for applicant submits that during the pendency of trial the opportunity of applicant to cross-examine PW-7 Prashant Tyagi was extinguished by court below vide order dated
16.01.2025. Accordingly applicant filed an application dated
27.01.2025 under Section 311 Cr.P.C. seeking recall of PW-7 for his cross-examination on behalf of accused applicant. However, aforementioned application filed by accused applicant was rejected by court below by means of order impugned dated 18.02.2025.
5. Thus feeling aggrieved by the above order dated 18.02.2025, applicant has now approached this Court by means of present application under Section 528 BNSS.
6. Learned counsel for applicant submits that order impugned in the present application is wholly illegal. Consequently, the same is liable to be quashed by this Court. In the submission of learned counsel for applicant the court below has not decided the application under Section 311 Cr.P.C. filed by the accused applicant in the light of parameters laid down by Apex Court in the case of Raja Ram Prasad Yadav Vs. State of Bihar and another, (2013) 14 SCC 461, wherein the Apex Court has laid down the parameters which are required to be observed to decide the bona fide of an applicant in filing an application under Section 311 Cr.P.C.
7. Referring to the judgment of Supreme Court in Varsha Garg Vs. State of M.P. & Ors., 2022 SCC Online SC 986, the learned counsel for applicant submits that the Apex Court in the aforementioned judgment has already observed that trial before court below is that of an accused. As such the trial should be free and fair trial. It is then submitted by the learned counsel for applicant that in criminal jurisprudence an accused has the right to cross-examine prosecution witnesses. It is also an established rule of evidence that no amount of evidence can be looked into unless it comes out unscratched from the furnace of cross-examination. However, in the present case, merely the deposition i.e. statement- in-chief of PW-7 shall be read against applicant inasmuch as the said witness has not been cross-examined on behalf of accused applicant.
8. According to the learned counsel for applicant principles of natural justice demand that justice should not only be done but should also seen to be done. The present case is a case of no cross- examination of PW-7 on behalf of accused applicant and not further cross-examination. The court below while passing order impugned has clearly ignored the above. As such the present application is liable to be allowed by this Court.
9. Per contra, the learned AGA representing State-opposite party-1 has opposed the present application and he has supported the order impugned. He submits that the court below has rejected the application under Section 311 Cr.P.C. filed by accused applicant by assigning cogent reasons. Since the reason/findings recorded by court below in support of conclusion drawn could not be dislodged by learned counsel for applicant therefore conclusion drawn by court below is not liable to be altered. As such no indulgence is warranted by this Court in present application.
10. On the other hand, Mr. Pankaj Dwivedi, the learned counsel representing first informant has also opposed the present application. He has adopted the submissions urged by the learned AGA. Referring to the order impugned the learned counsel representing first informant/opposite party-2 submits that no indulgence is warranted by this Court. However he could not dislodge the factual and legal submissions urged by learned counsel for applicant with reference to record at this stage.
11. Having heard the learned counsel for applicant, the learned AGA representing State-opposite party-1 and learned counsel representing first informant-opposite party-2 and upon perusal of record, this Court finds that it is an admitted fact between the parties that no cross-examination of PW-7 could take place on behalf of accused applicant Kaptan Singh on 16.01.2025. Principles of natural justice require that justice should not only be done but also seen to be done. In view of above the applicant was entitled to one opportunity to cross-examine PW-7. Even though no cross-examination of PW-7 has taken place on behalf of accused applicant yet the deposition of PW-7 shall be read against applicant which cannot be said to be fair. The Apex Court in the case of Rajaram Prasad Yadav (supra) has laid down detailed parameters which are required to be observed while deciding an application under Section 311 Cr.P.C. However, the court below has rejected the application under Section 311 Cr.P.C. filed by applicant on the basis of stereotype findings without going into the facts and circumstances of the case. In view of above, interest of justice require that one more opportunity should be granted to the applicant to cross-examine PW-7. As a result, present application succeeds and is liable to be allowed.
12. It is accordingly allowed.
13. The order impugned dated 18.02.2025 is hereby quashed. The applicant shall deposit cost of Rs.5,000/- before the court below within a period of one month from today. In case the cost as indicated above is deposited by applicant before the court below within the time period mentioned above, Court below shall issue summons to PW-7 and recall him for further cross-examination on behalf of accused applicant. Upon appearance of PW-7 the cost deposited by applicant shall be paid to him.
14. However, under this order only one opportunity shall be afforded to the accused applicant to cross-examine PW-7 either personally or though V.C. However, if PW-7 appears before court below and his cross-examination could not take place on behalf of accused applicant on any ground whatsoever, then the rights of accused applicant to cross-examine PW-7 under this order shall stand extinguished. In case the cost as indicated above is not deposited within the time period indicated above, the present application shall stand dismissed without further reference to the Court. Order Date :- 8.5.2025 R.S. Tiwari RAVI SHANKAR TIWARI High Court of Judicature at Allahabad