Allowed

Babloo @ Zameer Khan v. State of U.P. and Another

Allahabad HC23 Oct 2024A482/21509/2024

Case brief

AI extract

What is this about?

The Allahabad High Court allowed an application under S. 482 CrPC to quash orders rejecting a delay-mediation request for cross-examining an eyewitness. The court held that despite an 8+ year delay, denying the accused a fair opportunity to cross-examine an eye-witness violates the right to a fair trial, directing the trial court to recall the witness.

What did the court decide?

The orders dated 12.03.2024 and 26.04.2024 were set aside, and the trial court was directed to recall PW-2 for cross-examination within 15 days.

Babloo @ Zameer Khan vs State of U.P. and… — Civil Procedure and Limitation | Allahabad HC (2024)

¶1

¶2

Neutral Citation No. - 2024:AHC:170149

¶3

Court No. - 77

¶4

Case :- APPLICATION U/S 482 No. - 21509 of 2024

¶5

Applicant :- Babloo @ Zameer Khan Opposite Party :- State of U.P. and Another Counsel for Applicant :- Adil Jamal,Shabeh Jamal Counsel for Opposite Party :- G.A.

¶6

Hon'ble Sanjay Kumar Pachori,J.

¶7

Learned counsel for the applicant submits that due to inadvertence the prayer has been wrongly mentioned.

¶8

Learned counsel for the applicant is permitted to correct the same during the course of hearing.

¶9

Heard, Sri Adil Jamal, learned counsel for the applicant and Sri Karunakar Singh, learned A.G.A. for the State.

¶10

The present application under Section 482 of the Code of Criminal Procedure, 1973 has been filed to quash the order dated 12.03.2024 as well as order dated 26.04.2024 passed by Additional Sessions Judge Court No. 6, Moradabad in Session Trial No. 629 of 2011, (State of U.P. Vs. Babloo @ Zameer) arising out of Case Crime No. 09 of 2011, under Sections 307, 120B, 420 of Indian Penal Code (hereinafter referred as “I.P.C.”), Police Station- Nagfani, District- Moradabad, whereby two applications to grant opportunity to cross-examine PW-2 has been rejected.

¶11

Learned counsel for the applicant submits that the impugned orders has been passed without considering the facts and circumstances of the case and position of law and the principle of natural justice. It is further submitted that statement of PW-2 was recorded on 11.08.2015 and the opportunity to cross-examine PW-2 has been closed on the same day. It is further submitted that PW-2 is an eye witness of the incident.

¶12

The trial court observed that the applicant has filed the applications in question after about 8 years 3 months and 22 days.

¶13

¶14

Before considering the rival submissions of the parties, it is apposite to consider the settled position of law.

¶15

In Dr. Rajesh Talwar and another Vs. C.B.I. and another, (2014) 1 SCC 628 , the Supreme Court considered the issue of fair trial observing in Para 10, which is as under:-

¶16

“10. This Court in Selvi J. Jayalalithaa & Ors. v. State of Karnataka & Ors. (Writ Petition (Crl.) No.154 of 2013) decided on 30.9.2013, after referring to its earlier judgments in Triveniben Vs. State of Gujarat, AIR 1989 SC 1335; Zahira Habibullah Sheikh and Another Vs. State of Gujarat and others, AIR 2006 SC 1367; Capt. Amarinder Singh Vs. Prakash Singh Badal & Ors., (2009) 6 SCC 260; Mohd. Hussain @ Julfikar Ali v. State (Govt. of NCT of Delhi), AIR 2012 SC 750; and Natasha Singh Vs. CBI (State), (2013) 5 SCC 741, dealt with the issue of fair trial observing:

¶17

Fair trial is the main object of criminal procedure and such fairness should not be hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society. Thus, fair trial must be accorded to every accused in the spirit of right to life and personal liberty and the accused must get a free and fair, just and reasonable trial on the charge imputed in a criminal case. Any breach or violation of public rights and duties adversely affects the community as a whole and it becomes harmful to the society in general. In all circumstances, the courts have a duty to maintain public confidence in the administration of justice and such duty is to vindicate and uphold the ‘majesty of the law’ and the courts cannot turn a blind eye to vexatious or oppressive conduct that occurs in relation to criminal proceedings.

¶18

Denial of a fair trial is as much injustice to the accused as is to the victim and the society. It necessarily requires a trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. Since the object of the trial is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities and must be conducted under such rules as will protect the innocent and punish the guilty. Justice should not only be done but should be seem to have been done. Therefore, free and fair trial is a sine qua non of Article 21 of the Constitution. Right to get a fair trial is not only a basic fundamental right but a human right also. Therefore, any hindrance in a fair trial could be violative of Article 14 of the Constitution.

¶19

xx xx xx xx

¶20

Article 12 of the Universal Declaration of Human Rights provides for the right to a fair trial what is enshrined in

¶21

¶22

Article 21 of our Constitution. Therefore, fair trial is the heart of criminal jurisprudence and, in a way, an important facet of a democratic polity and is governed by rule of law. Denial of fair trial is crucifixion of human rights.”

¶23

In the case of Natasha Singh Vs. C.B.I. (State), (2013) 5 SCC 741, the Supreme Court dealt with the scope of discretionary power of Section 311, Cr.P.C. after referring the judgment of P. Sanjeeva Rao Vs. State of A.P., AIR 2012 SC 2242 , which is as under:-

¶24

“Grant of fairest opportunity to the accused to prove his innocence was the object of every fair trial, observed this Court in Hoffman Andreas v. Inspector of Customs, Amritsar, (2000) 10 SCC 430. The following passage is in this regard apposite:

¶25

`In such circumstances, if the new Counsel thought to have the material witnesses further examined, the Court could adopt latitude and a liberal view in the interest of justice, particularly when the Court has unbridled powers in the matter as enshrined in Section 311 of the Code. After all the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible.’

¶26

xxx xxx xxx xxx

¶27

We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined in chief about an incident that is nearly seven years old….. we are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to crossexamine the witnesses, we would prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself.”

¶28

In view of the facts and circumstances of the case and keeping in mind the settled position of law in Dr. Rajesh Talwar (supra) and Natasha Singh (supra) , the orders dated 12.03.2024 and 26.04.2024 are set-aside.

¶29

The present application u/s 482 is disposed of with a direction to the trial Court to recall the PW-2 (eye witness) for cross-examination by the

¶30

¶31

applicant and the applicant shall cross-examine PW-2 within 15 days, after production of a certified copy of this order.

¶32

Learned counsel for the applicant undertakes that the crossexamination be completed on day to day basis till the completion of crossexamination without any unnecessary adjournment.

¶33

Order Date :- 23.10.2024 Ishan

¶34

Digitally signed by :- ISHAN JAISWAL High Court of Judicature at Allahabad

Babloo @ Zameer Khan v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Babloo @ Zameer Khan v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Daya Shanker Singh vs State of U.P. and Another

Ajay Rai and 8 Others vs State of U.P. and Another

Mohd. Momin and 2 Others vs State of U.P. and Another

Mukesh Sharma vs State of Up and Another

Raju vs State of U.P. and Another

Manavendra Singh and 2 Others vs State of U.P. and 2 Others