Allahabad High Court
Vijay Kumar vs State Of U.P. Thru. Prin. Secy. Home ... on 9 September, 2025
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:54315
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
CRIMINAL REVISION No. - 1008 of 2025
Vijay Kumar
.....Revisionist(s)
Versus
State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And Another
.....Opposite Party(s)
Counsel for Revisionist(s)
:
Nitya Nand Mani Tripathi, Vijay Shankar Trivedi
Counsel for Opposite Party(s)
:
G.A.
Court No. - 11
HON'BLE SAURABH LAVANIA, J.
1. Heard.
2. Present application has been filed by the applicant the following main relief:-
"WHEREFORE, it is most respectfully prayed that this Hon'ble Court may be pleased to call for records of the court below and quash/ set aside the impugned order dated 6.8.2025 passed by the Additional District and Sessions Judge / Special Judge POCSO Act Court No. 2, Lucknow in S.T. NO. 1528/2022 State Versus Vijay Kumar by which application u/s 311 Cr.P:.C. filed by the revisionist has been rejected in respect of Crime No. 480/2022 U/S 376 AB/511, 354 I.P.C. and 5/6, 9/10 POCSO Act Police Station Chinhat, District Lucknow, and allow the instant revision in the interest of justice."
3. The order dated 06.08.2025, impugned herein, has been passed by the Additional District and Sessions Judge/Special Judge POCSO Act Court No. 2, Lucknow (in short "trial Court") in S.T. NO. 1528/2022 (State vs. Vijay Kumar).
4. Vide order dated 06.08.2025 the application under Section 311 CrPC preferred by the revisionist has been rejected. This application was moved with a prayer to recall Rekha Devi (PW-1). The relevant portion of the impugned order dated 06.08.2025 is extracted here-in-under:-
"???? ??? ???????? ?? ??????? ????? ???????? ?? ??????? ?? ?????? ???? ?? ?? ??.?????-1/ ?????? ?????? ???? ???? ?? ???????????? ?????? 20.03.2023 ?? ????? ?? ??? ???? ???? ?? ???????? ?? ? ??? ?? ???? ???? ?????? ?? ??? ?????? ?? ???????????? ?????? 28.06.2023 ?? ????? ?? ??? ??????? ????? ??? ???????? ???? ????? ?? ???? ???????? ???? 313 ??.???.??. ???????? ???? ?? ???? ?? ??? ???? ???? ?? ?? ?? ???? ?????? ?? ???????? ???? ?? ???? ???? ???????? ??? ???? ???? ??? ?? ??? ?????? 17.07.2025 ?? ???????? ?????? ????????????? ???????? ???? 311 ??.???.??. ???????? ???? ???? ????????????? ??? ?????? ?? ???????? ???? ??? ??, ?? ?? ??????? ?? ???? ??? ?? ????? ?? ???-??? ?? ????????? ??, ????? ??? ?????? ???? ?? ?? ????????????? ?? ?????? ?? ??????? ???? ???? ?? ??? ?? ???????? ???? ??? ??? ??? ?????? ??? ????? ?? ?????? ???????????? ?? ???????? ???????? ?? ?? ?? ?? ?? ???????? ?? ????????????? ???????? ???? 311 ??.???.??. ??????? ???? ???? ?? ???? ???????? ??? ??? ???????? ?????? ???????? ????????????? ???????? ???? 311 ??.???.??. ??????? ???? ???? ????? ???? ???
????
???????? ?????? ???????? ????????????? ???????? ???? 311 ??.???.??. ?????? ???? ???? ??? ???????? ?????? 14.8.25 ?? ??? ???"
5. In the aforesaid background of the case, present application has been filed challenging the order dated 06.08.2025.
6. Learned counsel for the applicant impeaching the order dated 06.08.2025 passed by the trial Court stated that as per settled principle of law, the application ought to have been allowed and order impugned is against the principle settled in this regard as also the observations made by the Hon'ble Apex Court in regard to expression "Fair Trial". As such, interference of this Court is required in the matter.
7. Learned AGA opposed the present application. He stated that the application was moved with sole intention to delay the trial, which is impermissible and in these circumstances of the case, the application has rightly been rejected by the trial Court.
8. Considered the submissions advanced by the learned counsel for the parties and perused the record including the observations made by the trial Court in the order dated 06.08.2025 and the principles related to recall the witnesses under Section 311 Cr.P.C. settled by the Hon'ble Apex Court in the case(s) of Mohd. Khalid vs. State of West Bengal (2002) 7 SCC 334, Natasha Singh vs. CBI, (2013) 5 SCC 741 : (2013) 4 SCC (Cri) 828 : 2013 SCC OnLine SC 444, State of Haryana vs. Ram Mehar and others; (2016) 8 SCC 762, State (NCT of Delhi) vs. Shiv Kumar Yadav and Another, (2016) 2 SCC 402; Swapan Kumar Chatterjee vs. Central Bureau of Investigation, (2019) 14 SCC 328; Varsha Garg vs. State of Madhya Pradesh and Others; 2022 SCC OnLine SC 986 and as also by this Court in Application under Section 482 Cr.P.C. No. 274 of 2022 (Ram Nayak Singh vs. State of U.P. & Another).
9. It is well settled by catena of decisions by the Hon'ble Apex Court that the power under Section 311 Cr.P.C. must be exercised with the care, caution and circumspection and only for strong and valid reasons. The recall of a witness already examined should not be a matter of course and discretion given to the court in this regard has to be exercised judicially to prevent failure of justice. The object of the provision as a whole is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society.
10. The Court is fully conscious of the position that after all the trial is basically for the prisoners/accused and the Court should afford an opportunity to them in the fairest manner possible. At the same time, the Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right. Recalling of witnesses has to be applied on the basis of judicially established and accepted principles.
11. In the facts of the case, it would be apt to refer the observations made in the judgment(s) passed in the case of Mohd. Khalid (Supra) and Ram Mehar (Supra).
12. In the case of Mohd. Khalid (Supra), the Hon'ble Apex Court observed as under:-
"Before parting with the case, we may point out that the Designated Court deferred the cross-examination of the witnesses for a long time. That is a feature which is being noticed in many cases. Unnecessary adjournments give a scope for a grievance that the accused persons get a time to get over the witnesses. Whatever be the truth in this allegation, the fact remains that such adjournments lack the spirit of Section 309 of the Code. When a witness is available and his examination-in- chief is over, unless compelling reasons arc there, the Trial Court should not adjourn the matter on the mere asking. These aspects were highlighted by this Court in State of U.P. v. Shambhu Nath Singh and others (2001) 4 SCC 667 and N.G. Dastane v. Shrikant Shivde (2001) 6 SCC 135. In the case of State of U.P. v. Shambhu Nath Singh and others (2001) 4 SCC 667, this Court deprecated the practice of Courts adjourning cases without examination of witnesses when they are in attendance with the following observations:-
"9. We make it abundantly clear that if a witness is present in Court he must be examined on that day. The Court must know that most of the witnesses could attend the Court only at heavy cost to them, after keeping aside their own avocation. Certainly they incur suffering and loss of income. The meagre amount of bhatta (allowance) which a witness may be paid by the Court is generally a poor solace for the financial loss incurred by him. It is a said plight in the Trial Courts that witnesses who are called through summons or other processes stand at a doorstep from morning till evening only to be told at the end of the day that the case is adjourned to another day. This primitive practice must be reformed by every one provided the presiding officer concerned has a commitment towards duty. No sadistic pleasure, in seeing how other persons summoned by him as witnesses are standard on account of the dimension of his judicial powers, can be a persuading factor for granting such adjournments lavishly, that too in a casual manner."
13. In the case of Ram Mehar (Supra), the Hon'ble Apex Court observed as under:-
"23. In Bablu Kumar and others v. State of Bihar and another, (2015) 8 SCC 787 the Court referred to the authorities in Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC, Rattiram and others v. State of Madhya Pradesh (2012) 4 SCC 516, J. Jayalalithaa and others v. State of Karnataka and others (2014) 2 SCC 401, State of Karnataka v. K. Yarappa Reddy (1999) 8 SCC 715 and other decisions and came to hold that keeping in view the concept of fair trial, the obligation of the prosecution, the interest of the community and the duty of the court, it can irrefragably be stated that the court cannot be a silent spectator or a mute observer when it presides over a trial. It is the duty of the court to see that neither the prosecution nor the accused play truancy with the criminal trial or corrode the sanctity of the proceeding. They cannot expropriate or hijack the community interest by conducting themselves in such a manner as a consequence of which the trial becomes a farcical one. It has been further stated that the law does not countenance a "mock trial". It is a serious concern of society. Every member of the collective has an inherent interest in such a trial. No one can be allowed to create a dent in the same. The court is duty-bound to see that neither the prosecution nor the defence takes unnecessary adjournments and take the trial under their control. We may note with profit though the context was different, yet the message is writ large. The message is - all kinds of individual notions of fair trial have no room"."
"38. At this juncture, we think it apt to state that the exercise of power under Section 311 Cr.P.C. can be sought to be invoked either by the prosecution or by the accused persons or by the Court itself. The High Court has been moved by the ground that the accused persons are in the custody and the concept of speedy trial is not nullified and no prejudice is caused, and, therefore, the principle of magnanimity should apply. Suffice it to say, a criminal trial does not singularly centres around the accused. In it there is involvement of the prosecution, the victim and the victim represents the collective. The cry of the collective may not be uttered in decibels which is physically audible in the court premises, but the Court has to remain sensitive to such silent cries and the agonies, for the society seeks justice. Therefore, a balance has to be struck. We have already explained the use of the words "magnanimous approach" and how it should be understood. Regard being had to the concept of balance, and weighing the factual score on the scale of balance, we are of the convinced opinion that the High Court has fallen into absolute error in axing the order passed by the learned trial Judge. If we allow ourselves to say, when the concept of fair trial is limitlessly stretched, having no boundaries, the orders like the present one may fall in the arena of sanctuary of errors. Hence, we reiterate the necessity of doctrine of balance".
14. Having considered the aforesaid, this Court finds that application was moved with sole intention to delay the trial and the process adopted by the defence is nothing, but an abuse of process of law. It is for the following reason(s):-
(i) The witnesses of the prosecution namely Rekha Devi (PW-1), in relation to whom the application under Section 311 CrPC was moved by the applicant, was examined on 20.03.2023 and thereafter on 28.06.2023 this witness was duly cross examined. Thus, this witness was cross examined after three months from her examincation-in-chief.
(ii) The application under Section 311 CrPC was moved on 17.07.2025 after about two years and six months from the date of cross examination of PW-1.
(iii) The application under Section 311 CrPC is vague, as is evident from the application itself and as Annexure No. 5 to the present application, for the reason that tangible reasons for recalling the PW-1 have not been indicated, which should be in view of the observation made in the case of State (NCT of Delhi) vs. Shiv Kumar Yadav and Another, (2016) 2 SCC 402.
15. For the reasons aforesaid, the instant application is hereby dismissed. No order as to costs.
(Saurabh Lavania,J.)
September 9, 2025
Vinay/-
