It is further prayed that this Hon'ble Court may be pleased to v. Station-Dannahar, District-Mainpuri and direct

Applicant :- Manish Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Roopesh Srivastava Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.

1. Heard Mr. Alok Kumar Vishwakarma, Advocate holding brief of Mr. Roopesh Srivastava, the learned counsel for applicant and the learned A.G.A. for State opposite party-1.

2. Perused the record.

3. On the matter being taken up the learned A.G.A. submits that notice of this application under Section 528 B.N.S.S. has been served upon first informant opposite party 2 on 4.4.2025. However, inspite of service of notice upon first informant/opposite party 2, no counter affidavit has been filed by him in opposition to this application nor any one has put in appearance on his behalf to oppose this application even in revised call.

4. Applicant Manish who is a named as well as charge sheeted accused and facing trial before court below has now approached this Court by means of the present application under Section 528 BNSS with the following prayer: "It is, therefore, Most Respectfully prayed that this Hon'ble Court may kindly be pleased to allow the present application and quash the impugned order dated 04.02.2025 passed by the Court of learned Special Judge, POCSO Act, Mainpuri passed in Special Trial No.116 of 2020 (State Vs. Manish), arising out of Case Crime No. 139 of 2020, Under Section 354, 376 1.P.C. and Section 3/4 POCSO Act, Police Station-Dannahar, District- Mainpuri, whereby the learned court below rejected the application Under Section 311 Cr.P.C. moved by the applicant. It is further prayed that this Hon'ble Court may be pleased to stay the further proceeding of impugned order dated 04.02.2025 passed by the Court of learned Special Judge, POCSO Act, Mainpuri passed in Special Trial No.116 of 2020 (State Vs. Manish), arising out of Case Crime No. 139 of 2020, Under Section 354, 376 I.P.C. and Section 3/4 POCSO Act, Police Station-Dannahar, District-Mainpuri and direct the learned court below to provide one opportunity to the defence for cross examination of P.W.2, during the pendency of the present application before this Hon'ble Court, otherwise the applicants shall suffer irreparable loss and injury. And/or to pass such other and further order which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case."

5. Learned counsel for applicant submits that during pendency of aforementioned trial applicant filed an application dated 10.10.2024 under Section 311 Cr.P.C. with the prayer that P.W. 1 Ratan Lal, the first informant be recalled as certain specific question could not be put to him in his cross examination. The application further details the question proposed to be put to the witness sought to be recalled i.e. P.W.1. However, irrespective of above the court below by means of order impugned dated 04.02.2025 rejected the above mentioned application.

6. According to the learned counsel for applicant the order impugned in present application is manifestly illegal and in excess of the jurisdiction. Consequently, the same is liable to be quashed by this Court. It is then submitted by the learned counsel for applicant that since the application under Section 311 Cr.P.C. clearly discloses the question proposed to be put to the prosecution witness sought to be recalled, therefore, it cannot be said that there was no bonafide on the part of the applicant in filing the application above mentioned. The court below without considering the relevancy of the said questions in arriving at the truth of the matter on the basis of stereo typed findings has rejected the same. As such the order impugned is manifestly illegal, unjust and arbitrary and therefore liable to be quashed by this Court.

7. Per contra, the learned A.G.A. representing State opposite party 1 has vehemently opposed the present application. Learned A.G.A. submits that it is true that the questions proposed to be put to the witnesses have been mentioned in the application dated 10.10.2024 under Section 311 Cr.P.C. filed by the accused applicant but the relevancy of the same has not been detailed therein. Referring to the judgment of the Supreme Court in Raja Ram Prasad Yadav Vs. State of Bihar and another 2013 (14) SCC page 461learned A.G.A. submits that the Apex Court in aforementioned judgment has laid down the parameters which are required to be observed while considering the bonafide of the applicant in filing an application under Section 311 Cr.P.C. Drawing a parallel between the parameters laid down by Apex Court in above noted judgment and the facts of the present case, learned A.G.A. thus submits that no bonafide of the applicant is apparent from the application above mentioned. P.W. 1 was examined long ago and he has duly proved the written report submitted by him. He, therefore, contends that it is on account of above that no pleading qua the relevancy of the questions proposed to be put to P.W.1 has been mentioned in the above mentioned application. On the above premises it is thus urged by the learned A.G.A. that no illegality can be said to have been committed by court below in passing the order impugned. In view of above, no interference is warranted by this Court in present application. As such the present application is liable to be dismissed.

8. When confronted with the above, the learned counsel for applicant could not over come the same.

9. Having heard the learned counsel for applicant, the learned A.G.A. for State Opposite Party-1 and upon perusal of record, this Court finds that the objection raised by the learned A.G.A. in opposition to this application are not only borne out from the record but furthermore the same could not be dislodged by the learned counsel for applicant with reference to the record. In view of above, no good ground exists to entertain the present application.

10. As a result, the present application fails and is liable to be dismissed.

11. It is, accordingly, dismissed. Order Date :- 12.5.2025 Kumar Manish MANISH TRIPATHI High Court of Judicature at Allahabad

Applicant :- Manish Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Roopesh Srivastava Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.

1. Heard Mr. Alok Kumar Vishwakarma, Advocate holding brief of Mr. Roopesh Srivastava, the learned counsel for applicant and the learned A.G.A. for State opposite party-1.

2. Perused the record.

3. On the matter being taken up the learned A.G.A. submits that notice of this application under Section 528 B.N.S.S. has been served upon first informant opposite party 2 on 4.4.2025. However, inspite of service of notice upon first informant/opposite party 2, no counter affidavit has been filed by him in opposition to this application nor any one has put in appearance on his behalf to oppose this application even in revised call.

4. Applicant Manish who is a named as well as charge sheeted accused and facing trial before court below has now approached this Court by means of the present application under Section 528 BNSS with the following prayer: "It is, therefore, Most Respectfully prayed that this Hon'ble Court may kindly be pleased to allow the present application and quash the impugned order dated 04.02.2025 passed by the Court of learned Special Judge, POCSO Act, Mainpuri passed in Special Trial No.116 of 2020 (State Vs. Manish), arising out of Case Crime No. 139 of 2020, Under Section 354, 376 1.P.C. and Section 3/4 POCSO Act, Police Station-Dannahar, District- Mainpuri, whereby the learned court below rejected the application Under Section 311 Cr.P.C. moved by the applicant. It is further prayed that this Hon'ble Court may be pleased to stay the further proceeding of impugned order dated 04.02.2025 passed by the Court of learned Special Judge, POCSO Act, Mainpuri passed in Special Trial No.116 of 2020 (State Vs. Manish), arising out of Case Crime No. 139 of 2020, Under Section 354, 376 I.P.C. and Section 3/4 POCSO Act, Police Station-Dannahar, District-Mainpuri and direct the learned court below to provide one opportunity to the defence for cross examination of P.W.2, during the pendency of the present application before this Hon'ble Court, otherwise the applicants shall suffer irreparable loss and injury. And/or to pass such other and further order which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case."

5. Learned counsel for applicant submits that during pendency of aforementioned trial applicant filed an application dated 10.10.2024 under Section 311 Cr.P.C. with the prayer that P.W. 1 Ratan Lal, the first informant be recalled as certain specific question could not be put to him in his cross examination. The application further details the question proposed to be put to the witness sought to be recalled i.e. P.W.1. However, irrespective of above the court below by means of order impugned dated 04.02.2025 rejected the above mentioned application.

6. According to the learned counsel for applicant the order impugned in present application is manifestly illegal and in excess of the jurisdiction. Consequently, the same is liable to be quashed by this Court. It is then submitted by the learned counsel for applicant that since the application under Section 311 Cr.P.C. clearly discloses the question proposed to be put to the prosecution witness sought to be recalled, therefore, it cannot be said that there was no bonafide on the part of the applicant in filing the application above mentioned. The court below without considering the relevancy of the said questions in arriving at the truth of the matter on the basis of stereo typed findings has rejected the same. As such the order impugned is manifestly illegal, unjust and arbitrary and therefore liable to be quashed by this Court.

7. Per contra, the learned A.G.A. representing State opposite party 1 has vehemently opposed the present application. Learned A.G.A. submits that it is true that the questions proposed to be put to the witnesses have been mentioned in the application dated 10.10.2024 under Section 311 Cr.P.C. filed by the accused applicant but the relevancy of the same has not been detailed therein. Referring to the judgment of the Supreme Court in Raja Ram Prasad Yadav Vs. State of Bihar and another 2013 (14) SCC page 461learned A.G.A. submits that the Apex Court in aforementioned judgment has laid down the parameters which are required to be observed while considering the bonafide of the applicant in filing an application under Section 311 Cr.P.C. Drawing a parallel between the parameters laid down by Apex Court in above noted judgment and the facts of the present case, learned A.G.A. thus submits that no bonafide of the applicant is apparent from the application above mentioned. P.W. 1 was examined long ago and he has duly proved the written report submitted by him. He, therefore, contends that it is on account of above that no pleading qua the relevancy of the questions proposed to be put to P.W.1 has been mentioned in the above mentioned application. On the above premises it is thus urged by the learned A.G.A. that no illegality can be said to have been committed by court below in passing the order impugned. In view of above, no interference is warranted by this Court in present application. As such the present application is liable to be dismissed.

8. When confronted with the above, the learned counsel for applicant could not over come the same.

9. Having heard the learned counsel for applicant, the learned A.G.A. for State Opposite Party-1 and upon perusal of record, this Court finds that the objection raised by the learned A.G.A. in opposition to this application are not only borne out from the record but furthermore the same could not be dislodged by the learned counsel for applicant with reference to the record. In view of above, no good ground exists to entertain the present application.

10. As a result, the present application fails and is liable to be dismissed.

11. It is, accordingly, dismissed. Order Date :- 12.5.2025 Kumar Manish MANISH TRIPATHI High Court of Judicature at Allahabad