Rishipal and 3 Others Vs State of U.P. and Another

Neutral Citation No. - 2025:AHC:104135

Court No. - 83

Case :- CRIMINAL APPEAL No. - 5349 of 2025

Appellant :- Rishipal And 3 Others Respondent :- State of U.P. and Another Counsel for Appellant :- Sunil Kumar Singh Counsel for Respondent :- G.A.

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Hon'ble Nalin Kumar Srivastava,J.

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The present criminal appeal under Section 14-A(1) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act (in short 'the SC/ST Act') has been filed by the appellants - Rishipal, Rinku, Raghuveer and Khem Singh to set aside the impugned orders dated 18.3.2025 and 23.4.2025 passed by Special Judge, (SC/ST Act), Bijnor in Application No. Kha-108, under Section 311 CrPC, in Session Trial No. 40 of 2019, arising out of case crime no. 123 of 2018, under Sections 452, 323, 504, 506, 427 IPC and 3(1)(da), 3(1)(dha) of the SC/ST Act, Police Station Rehar, District Bijnor.

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Heard learned counsel for the appellants as well as the learned AGA for the State and perused the record.

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An application u/s 311 of Cr.P.C. was filed by the appellants / accused persons to recall PW-8 - Dr. Raj Kumar Singh for crossexamination but the same was rejected by the trial court and the opportunity for cross-examination was closed and the case was fixed for recording of statement of the accused under Section 313 CrPC.

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It is submitted by the learned counsel for the appellants that the orders passed on the application under Section 311 Cr.P.C. are

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illegal. It is further submitted that if the prayer made in the appeal is not accepted, the appellants would be deprived of their 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.

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

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

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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.

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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.

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In the case of Swapan Kumar Chatterjee vs. CBI, (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 along back and reasons for nonexamination 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.

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In the present matter, from a perusal of the record it appears that on 18.3.2025 the appellant Rishipal had moved an application before the trial court to the effect that since his counsel was out-ofstation, it was not possible to cross-examine the concerned witness on the said date but the Court concerned recorded the crossexamination of Dr. Raj Kumar Singh - PW-8 through video conferencing. Further, in the order dated 23.4.2025 it was observed that with a view to delay the trial the said witness was not crossexamined and the opportunity of cross-examination of PW-8 Dr. Raj Kumar Singh was closed. In the circumstances, in my view, if the appellants are not afforded appropriate and sufficient opportunity, their valuable right to defend themselves would be prejudiced. While passing the impugned order, the trial court

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without taking into consideration the principles of natural justice and fair trial rejected the application moved by the appellants. Hence, the present appeal is liable to be allowed and the orders dated 18.3.2025 and 23.4.2025 are liable to be set aside.

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Accordingly, the criminal appeal is allowed and the orders dated 18.3.2025 and 23.4.2025 passed by Special Judge, (SC/ST Act), Bijnor in Application No. Kha-108, under Section 311 CrPC, in Session Trial No. 40 of 2019, arising out of case crime no. 123 of 2018, under Sections 452, 323, 504, 506, 427 IPC and 3(1)(da), 3(1)(dha) of the SC/ST Act, Police Station Rehar, District Bijnor are hereby set aside and the trial court is directed to summon PW-8 Dr. Raj Kumar Singh for re-cross examination on the relevant points on which the cross-examination has not been made earlier, provided the appellants cooperate with the trial court.

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Order Date :- 3.7.2025 safi

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Digitally signed by :- MAHBOOB SAFI High Court of Judicature at Allahabad

Rishipal and 3 Others v. State of U.P. and Another

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