High Court · 2025

Petitioner :- Ram Avatar @ Munnaiya And Ors. Respondent :- State Of U.P. Thru. Prin. Secy. Home And Anr. Counsel for Petitioner :- Chandra Shekhar Sinha,Gaurav Verma Counsel for Respondent :- G.A.,Prem Shanker,Vinod Kumar Srivastava Hon'ble Subhash Chandra Sharma,J. List revised none appeared on behalf of respondent even in the revised call except learned A.G.A. Counter affidavit filed today by learned A.G.A. is taken on record. Heard learned counsel for the petitioners as well as learned A.G.A. for the State and perused the material on record. This writ petition has been filed with the following prayers:- (i) to issue a writ, order or direction in the nature of certiorari quashing/ setting aside the impugned order dated 18.03.2019 passed by the court of District & Sessions' Judge, Lucknow in Criminal Revision No. 190 of 2019 viz. Ram Avatar & ors versus State and another. (ii) to issue a writ, order or direction in the nature of certiorari quashing/ setting aside the impugned order dated 29.01.2019 passed by the court of Judicial Magistrate II, Lucknow passed on the application filed U/s 311 Cr.P.C. by the informant in Criminal Case No. 1330 of 2010 arising out of Case Crime No. 78 of 2010, U/s 504, 506 I.P.C. r/w 3/4 D.P. Act, P.S. Hasanganj, Lucknow viz. State versus Ram Avatar and others. (iii) to pass any other just and suitable order in the given facts and circumstances of the case which this Hon'ble Court may deems fit and necessary. (iv) to stay the further proceedings of the case pending in the Court of Judicial Magistrate II, Lucknow in Criminal Case No. 1330 of 2010, Crime No. 78 of 2010, U/s 504, 506 I.P.C. r/w 3/4 D.P. Act, P.S. Hasanganj, Lucknow viz. State versus Ram Avatar and others during the pendency of this case. It is submitted by learned counsel for the petitioners that in this case P.W. 1 was examined before the learned trial court and his cross-examination was also completed by the learned counsel for the defence in which he did not support the prosecution case. Learned A.P.P. also cross-examined the witness thereafter on subsequent date compromise was filed and genuineness of prosecution papers was admitted by learned counsel for the defence and case was fixed for statement of accused persons under Section 313 Cr.P.C. After recording the statements of accused persons under Section 313 Cr.P.C. case was fixed for argument on 05.08.2017 then on 17.08.2017 an application under Section 311 Cr.P.C. was moved on the part of prosecution on which objection was invited and the order was passed on 29.01.2019 while allowing the application. It is further submitted that while exercising the powers under Section 311 Cr.P.C. the learned court concerned did not consider the provisions as contained under Section 311 Cr.P.C. and also did not record any finding for passing the order in question. No any specific witness was ordered to be produced before the court for examination but general order was passed to summon the witnesses which cannot be said to be in-conformity with the provisions as contained under Section 311 Cr.P.C. It is also submitted that the application under Section 311 Cr.P.C. on the basis of which order in question was passed states that after examination of P.W. 1 and during the course of argument in the case the accused persons threatened the informant outside the court to beat him before the court as soon as he will be acquitted since he was falsely implicated in the present case and also subjected to harassment. It was done in retaliation. The learned court passed the order in question only on the aforesaid threatening which was outside the court and was not related to the merit of the present case. On that very basis powers under Section 311 Cr.P.C. cannot be exercised unless the examination of such witnesses is necessary for the just decision of the present case. Threatening which was given outside the court was separate offence regarding which separate case can be lodged but that cannot affect the merit of the present case. Learned trial court did also not record any finding for summoning the witnesses but passed the order in one sentence summons be issued to witnesses and allowed the application which shows that there is no application of mind of learned court as to how it reached to the conclusion that examination of witnesses was necessary for just decision of the case. In this way, the order passed by learned trial court cannot be said to be lawful and likewise the order passed by learned revisional court dated 18.03.2019 can also not be said lawful since no merit of the case was taken into consideration. Learned counsel for the petitioner relied his arguments on the case decided by Hon'ble Supreme Court in Rajaram Prasad Yadav Vs. State of Bihar Another AIR(SC) 3081. Learned A.G.A. opposed the prayer as aforesaid but could not dispute the fact that the version of threatening as stated in the application under Section 311 Cr.P.C. is related to subsequent incident which took place outside the court and is not connected to the merit of the present case. On considering the facts and circumstances of the case, submissions made by learned counsel for the petitioners as well as learned A.G.A., perusal of record, the order passed by learned trial court as well as learned revisional court, the law as enumerated in section 311 Cr.P.C., it appears that the informant entered into compromise with the accused persons and turned hostile before the learned trial court. His chief examination was recorded on oath and then he was cross-examined by defence. He did not support the prosecution version as a result, declared hostile and prosecution was given an opportunity of cross- examination and he was cross-examined thereafter compromise was filed and evidence was closed. The statement of accused persons under Section 313 Cr.P.C. were recorded and case was fixed for argument. During the course of argument, outside the court the accused persons threatened the informant as mentioned in the application under Section 311 Cr.P.C. on the basis of which application was moved and objection was invited. After receiving objection from the defence order in question was passed by the learned trial court while exercising powers under Section 311 Cr.P.C. The order does not show any finding regarding conclusion as to why the learned trial court exercised its jurisdiction for just decision of this case. No any reasoning has been given in the order as to why the summoning of witnesses is necessary for just decision of the case whereas there is no any such mention in the application under Section 311 Cr.P.C. except the incident of threatening outside the court which is not related to the merit of the present case but it may be subsequent event regarding which there may be separate case. On the basis of that incident powers under Section 311 Cr.P.C. cannot be exercised. It also shows that the application has been allowed in a single line without assigning any reason, therefore, it cannot be said to be in-conformity with the provisions of law as contained under Section 311 Cr.P.C. In considered opinion of this Court, the order passed by the learned trial court is not sustainable in the eyes of law likewise the order passed by the learned revisional court, therefore, both the orders are hereby set aside and the petition is allowed. However, it is open to the learned trial court to exercise its powers under Section 311 Cr.P.C., if necessary for just decision of the case. Order Date :- 10.2.2025 Suraj Srivastav SURAJ SRIVASTAVA High Court of Judicature at Allahabad, Lucknow Bench

Petitioner :- Ram Avatar @ Munnaiya And Ors. Respondent :- State Of U.P. Thru. Prin. Secy. Home And Anr. Counsel for Petitioner :- Chandra Shekhar Sinha,Gaurav Verma Counsel for Respondent :- G.A.,Prem Shanker,Vinod Kumar Srivastava Hon'ble Subhash Chandra Sharma,J. List revised none appeared on behalf of respondent even in the revised call except learned A.G.A. Counter affidavit filed today by learned A.G.A. is taken on record. Heard learned counsel for the petitioners as well as learned A.G.A. for the State and perused the material on record. This writ petition has been filed with the following prayers:- (i) to issue a writ, order or direction in the nature of certiorari quashing/ setting aside the impugned order dated 18.03.2019 passed by the court of District & Sessions' Judge, Lucknow in Criminal Revision No. 190 of 2019 viz. Ram Avatar & ors versus State and another. (ii) to issue a writ, order or direction in the nature of certiorari quashing/ setting aside the impugned order dated 29.01.2019 passed by the court of Judicial Magistrate II, Lucknow passed on the application filed U/s 311 Cr.P.C. by the informant in Criminal Case No. 1330 of 2010 arising out of Case Crime No. 78 of 2010, U/s 504, 506 I.P.C. r/w 3/4 D.P. Act, P.S. Hasanganj, Lucknow viz. State versus Ram Avatar and others. (iii) to pass any other just and suitable order in the given facts and circumstances of the case which this Hon'ble Court may deems fit and necessary. (iv) to stay the further proceedings of the case pending in the Court of Judicial Magistrate II, Lucknow in Criminal Case No. 1330 of 2010, Crime No. 78 of 2010, U/s 504, 506 I.P.C. r/w 3/4 D.P. Act, P.S. Hasanganj, Lucknow viz. State versus Ram Avatar and others during the pendency of this case. It is submitted by learned counsel for the petitioners that in this case P.W. 1 was examined before the learned trial court and his cross-examination was also completed by the learned counsel for the defence in which he did not support the prosecution case. Learned A.P.P. also cross-examined the witness thereafter on subsequent date compromise was filed and genuineness of prosecution papers was admitted by learned counsel for the defence and case was fixed for statement of accused persons under Section 313 Cr.P.C. After recording the statements of accused persons under Section 313 Cr.P.C. case was fixed for argument on 05.08.2017 then on 17.08.2017 an application under Section 311 Cr.P.C. was moved on the part of prosecution on which objection was invited and the order was passed on 29.01.2019 while allowing the application. It is further submitted that while exercising the powers under Section 311 Cr.P.C. the learned court concerned did not consider the provisions as contained under Section 311 Cr.P.C. and also did not record any finding for passing the order in question. No any specific witness was ordered to be produced before the court for examination but general order was passed to summon the witnesses which cannot be said to be in-conformity with the provisions as contained under Section 311 Cr.P.C. It is also submitted that the application under Section 311 Cr.P.C. on the basis of which order in question was passed states that after examination of P.W. 1 and during the course of argument in the case the accused persons threatened the informant outside the court to beat him before the court as soon as he will be acquitted since he was falsely implicated in the present case and also subjected to harassment. It was done in retaliation. The learned court passed the order in question only on the aforesaid threatening which was outside the court and was not related to the merit of the present case. On that very basis powers under Section 311 Cr.P.C. cannot be exercised unless the examination of such witnesses is necessary for the just decision of the present case. Threatening which was given outside the court was separate offence regarding which separate case can be lodged but that cannot affect the merit of the present case. Learned trial court did also not record any finding for summoning the witnesses but passed the order in one sentence summons be issued to witnesses and allowed the application which shows that there is no application of mind of learned court as to how it reached to the conclusion that examination of witnesses was necessary for just decision of the case. In this way, the order passed by learned trial court cannot be said to be lawful and likewise the order passed by learned revisional court dated 18.03.2019 can also not be said lawful since no merit of the case was taken into consideration. Learned counsel for the petitioner relied his arguments on the case decided by Hon'ble Supreme Court in Rajaram Prasad Yadav Vs. State of Bihar Another AIR(SC) 3081. Learned A.G.A. opposed the prayer as aforesaid but could not dispute the fact that the version of threatening as stated in the application under Section 311 Cr.P.C. is related to subsequent incident which took place outside the court and is not connected to the merit of the present case. On considering the facts and circumstances of the case, submissions made by learned counsel for the petitioners as well as learned A.G.A., perusal of record, the order passed by learned trial court as well as learned revisional court, the law as enumerated in section 311 Cr.P.C., it appears that the informant entered into compromise with the accused persons and turned hostile before the learned trial court. His chief examination was recorded on oath and then he was cross-examined by defence. He did not support the prosecution version as a result, declared hostile and prosecution was given an opportunity of cross- examination and he was cross-examined thereafter compromise was filed and evidence was closed. The statement of accused persons under Section 313 Cr.P.C. were recorded and case was fixed for argument. During the course of argument, outside the court the accused persons threatened the informant as mentioned in the application under Section 311 Cr.P.C. on the basis of which application was moved and objection was invited. After receiving objection from the defence order in question was passed by the learned trial court while exercising powers under Section 311 Cr.P.C. The order does not show any finding regarding conclusion as to why the learned trial court exercised its jurisdiction for just decision of this case. No any reasoning has been given in the order as to why the summoning of witnesses is necessary for just decision of the case whereas there is no any such mention in the application under Section 311 Cr.P.C. except the incident of threatening outside the court which is not related to the merit of the present case but it may be subsequent event regarding which there may be separate case. On the basis of that incident powers under Section 311 Cr.P.C. cannot be exercised. It also shows that the application has been allowed in a single line without assigning any reason, therefore, it cannot be said to be in-conformity with the provisions of law as contained under Section 311 Cr.P.C. In considered opinion of this Court, the order passed by the learned trial court is not sustainable in the eyes of law likewise the order passed by the learned revisional court, therefore, both the orders are hereby set aside and the petition is allowed. However, it is open to the learned trial court to exercise its powers under Section 311 Cr.P.C., if necessary for just decision of the case. Order Date :- 10.2.2025 Suraj Srivastav SURAJ SRIVASTAVA High Court of Judicature at Allahabad, Lucknow Bench