Babu v. State of U.P. Thru. Prin. Secy. Home Deptt. Govt. of U.P. Lko. and Another

Court No. - 13 Case :- APPLICATION U/S 482 No. - 8805 of 2024 Applicant :- Babu Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Govt. Of U.P. Lko. And Another Counsel for Applicant :- Akhlaq Ali,Shabana Akhlaq Counsel for Opposite Party :- G.A. Hon'ble Saurabh Lavania,J. Heard. Present application has been filed by the applicant the following main relief:- "That in view of the facts and circumstances stated in the accompanying affidavit, it is respectfully prayed that the order dated 07.08.2024 passed by Additional Sessions Judge/Fast Track Court-II, Bahraich in S.T. No. 119/2019 (State Versus Faiz Khan and others) thereby rejecting the application under section-311 Cr. P.C. B-60 for summoning of PW-1 Meraj, PW-2 Abdul Qadir, PW-3 Mahfooz Ahmad and PW-4 Nadeem, Annexure No. 1 may be quashed and the application under section-311 Cr. P.C. B-60 Annexure No. 7 may be allowed in order to secure the ends of justice, or any other suitable order which this Hon'ble Court may deem fit in the circumstances of the case may also be passed." The order dated 07.08.2024, impugned herein, has been passed by the Additional Sessions Judge, FTC-II, Bahraich (in short "trial Court") in S.T. No. 119 of 2019 (State vs. Faiz Khan and Others), Case Crime No. 73/2013 under Section 302, 307, 34, 323, 504, 506 IPC & 7 of Criminal Law Amendment Act, Police Station-Dargah Sharif, District-Bahraich. Vide order dated 07.08.2024, under challenge, the trial Court has rejected the application dated 30.07.2024 preferred by the accused-applicant namely Babu S/o Shakil Khan under Section 311 CrPC. This application was moved with a prayer to recall Meraj (PW-1), Abdul Qadir (PW-2), Mahfooz Ahmad (PW-3) and Nadeem (PW-4). The application dated 30.07.2024, being relevant, is extracted hereinunder:- "Jheku th] fuosnu gS fd lk;y eqfLye us fiNyh rktiis'kh fnukad 25-07-24 bZ0 dks gh viuk vf/koDRkk fu;qDr fd;k gS izkFkhZ vfHk;qDr ds iwoZ vf/koDrk egksn; us ih0MCywti 1 esjkt o ih0MCywti 2 vCnqy dkfnj o ih0MCywti 3 egQwt vgen o ih0MCywti 4 unhe ls ?kVuk ds lEcU/k es ftjg ugha fd;k gS vkSj vc mijksDr lk{khx.k [kqysvke dj jgs gSa fd mUgksus dksbZ ?kVuk ugha ns[kh Fkh cfYd iqfyl ds ncko esa vkdj U;k;ky ij c;ku fn;k gS ftl otg ls izkFkhZ dks U;k; ugha fey ik;sxk] blfy, U;k;ky; ds le{k lgh rF; ykus gsrq o okLrs U;k;fgr esa mijksDr lk{khx.k dks ijh{kk gsrq U;k;ky; ij ryc fd;k tkuk vko';d gSA vr% Jheku th ls izkFkZuk gS fd U;k;fgr esa izkFkZuki= eatwj djds mijksDr lk{khx.k dks ijh{kk gsrq U;k;ky; ij ryc djus dh d`ik djsaA The trial Court, after considering the averments made in the application dated 30.07.2024, quoted above, as also the facts of the case including the objections raised by the prosecution, rejected the said application vide order dated

07.08.2024. The relevant portion of the order dated 07.08.2024, reads as under:- "mHk;i{k ds izkFkZuki= ds ifjizs{; esa i=koyh ds voyksdu ls fofnr gksrk gS fd izLrqr ekeys esa vfHk;kstu dh vksj ls oknh eqdnek lk{kh ih0MCywti&1 esjkt] lk{kh ih0MCywti&2 vCnqy dkfnj] lk{kh ih0MCywti&3 eSQwt] lk{kh ih0MCywti&4 eksti unhe] lk{kh ih0MCywti&5 dkti eksti gQht] lk{kh ih0MCywti&6 lyhe] lk{kh ih0MCywti&7 nsos'k pUn ik.Ms; ¼iksLVekVZedrkZ½] lk{kh ih0MCywti&8 dkti mes'k pUnz] lk{kh ih0MCywti&9 crkSj f}rh;d lk{kh mes'k pUnz] lk{kh ih0MCywti&10] ,ltivkbZ0 mekdkar feJk] lk{kh ih0MCywti&11 foospd izse izdk'k ik.Ms;] lk{kh ih0MCywti&12 vQj ijost] lk{kh ih0MCywti&13 mi fujh{kd lq'khy dqekj] lk{kh ih0MCywti&14 mi&fujh{kd lkSjHk flag] lk{kh ih0MCywti&15 ,ltivkbZ0 larks"k dqekj flag dks ijhf{kr djk;k x;k gSA fnukad 23-02-2023 dks fo}ku lgk;d vfHk;kstu vf/kdkjh }kjk vkns'k i=d ij vfHk;kstu dks vc lk{; ugha izLrqr djus dk fyf[kr dFku ij U;k;ky; }kjk i=koyh okLrs c;ku vUrxZr /kkjk 313 natiiztilati fu;r dh x;h gSA blds vfxze ukSoh rkjh[k is'kh ij vfHk;qDrx.k mijksDr dk c;ku vUrxZr /kkjk&313 natiiztilati fnukad 19-05-2023 dks vafdr fd;k x;k] ftles vfHk;qDr@vkosnd QSt [kku us viuk c;ku mijksDr vafdr djkrs gq, lQkbZ lk{; nsus dk dFku dj] xokgh fyLV ckn esa nsus dk fyf[kr dFku fd;kA blds ckn i=koyh lQkbZ lk{; gsrq fu;r dh x;hA vxyh frfFk ij lQkbZ lk{; izLrqr u djus ij U;k;ky; }kjk lQkbZ lk{; gsrq vafre volj Hkh fn;k x;kA U;k;ky; }kjk fnukad 19-06-2023 dks vfHk;qDr ckcw mQZ jktw rFkk QSt [kka mQZ ft;kmy dks lQkbZ lk{; gsrq iqu% vafre volj fn;k x;kA rnksijkUr fnukad 04-08-2023 dks vfHk;qDr QSt [kka mQZ ft;kmy }kjk izkFkZuki= v&46 okLrs QSt [kka dh ekrk duht Qkfrek crkSj lQkbZ lk{kh izLrqr djus ij U;k;ky; us mDr izkFkZuki= dks vkaf'kd :i ls Lohdkj djrs gq, vfHk;qDr ckcw] o QSt dks lQkbZ lk{; izLrqr djus dh vuqefr nsrs gq, vfxze frfFk ij lQkbZ lk{; izLrqr djus dk funsZ'k fn;k rFkk fnukad 10-10-2023 dks vfHk;qDr ckcw vyh mQZ jktw }kjk izLrqr izkFkZuki= c&45 ij ekuuh; mPp U;k;ky; bykgkckn ds fn'kk funsZ'k ij iqu% lquokbZ djrs gq, izkFkZuki= c&45] Lohdkj djrs gq, ftyk vLirky ls fnukad 05-02-2019 dk esfMdksyhxy jftLVj ryc fd;k x;k rFkk bl frfFk ij vfHk;qDr QSt [kka }kjk vHkh rd lQkbZ lk{; izLrqr u djus dk mYys[k fd;k x;kA vfxze frfFk 23-10-2023 o 01-11-2023 dks Hkh vfHk;qDr dh vksj ls lQkbZ lk{;@fyLV izLrqr ugha fd;k x;k ,oa vfxze fnukad 10-11-2023 dks Mh0MCyw01 lk{kh eghi dqekj xqIrk QkesZflLV] egf"kZ okfYedh fpfdRlky; cgjkbp dk lk{; vafdr fd;k x;k rFkk blds vfxze frfFk 22-11-2023 dks vfHk;qDr ft;kmy mQZ QSt [kka dh vksj ls lQkbZ lk{; ds :i esa Mh0MCywti 2 Jherh Qkfrek [kka dks izLrqr fd;k ,oa mDr frfFk ds vkns'k i=d ij vfHk;qDr@vkosnd ds fo}ku vf/koDrk }kjk vU; dksbZ lk{; ugha izLrqr djus dk fyf[kr vadu fd;k x;kA rnuqlkj i=koyh izkFkZuki= ,&49 gsrq fu;r dh x;h] tks lg&vfHk;qDr ckcw dh vksj ls dstithti,etilhti ds MkDVj vkosnd ds esfMdy lEcfU/kr fjiksVZ ryc djus dh ;kpuk gsrq izLrqr dh x;h Fkh] dks U;k;ky; }kjk Lohdkj dj] mDRk lk{kh dks ryc fd;k x;kA fnukad 22-11-2023 dks QSt [kka mQZ ft;kmy dh vksj ls vUrxZr /kkjk&311 natiiztilati izkFkZuki= ,@48 izLrqr fd;k x;k] ftls vkosnd ds fo}ku vf/koDrk }kjk fnukad 01-04-2024 dks cy u fn;s tkus ds dkj.k rnuqlkj fujLr dj fn;k x;kA bl izdkj Li"V gS vfHk;qDr@vkosnd QSt [kka dh vksj ls izLrqr izkFkZuki= ds }kjk mijksDR ;kfpr vfHk;kstu lkf{k;ksa dks ,oa lEcfU/kr ;kfpr fpfdRld dks ryc fd;s tkus dh ;kpuk dh x;h gS] ftuesa ls lk{kh esjkt] vCnqy dkfnj o EkSQwt dze'k% ih0MCywti 1] ih0MCywti 2 o ih0MCywti 3 ds :i esa vfHk;kstu }kjk dze'k% fnukad 11-12-2021] 24-02-2021 o 17-08-2021 dks iw.kZ :i ls vafdr djk;k x;k gS ,oa ih0MCywti 7 nsos'k pUnz ik.M;s] ftUgksus e`rd vuhl ds 'ko dk iksLVekVZe dj fjiksVZ rS;kj fd;k Fkk] dks Hkh vfHk;kstu }kjk ijhf{kr djk;k tk pqdk gS rFkk lQkbZ lk{; ds :i esa lgvfHk;qDr ckcw vyh mQZ jktw ds izkFkZuki= ij Mh0MCywti 1 lk{kh eghi dqekj xqIrk] QkesZflLV Hkh izLrqr gqvk gSA fnukad 19-05-2023 dks vfHk;qDrx.k dk c;ku vUrxZr /kkjk&313 natiiztilati vafdr gksus ds mijkUr lQkbZ lk{; gsrq i;kZIr volj fn;s tkus ,oa dbZ ckj vafre volj fn;s tkus ds mijkUr Mh0MCywti 1] Mh0MCywti 2 izLrqr fd;s x;s gSA ;|fi vkosnd@vfHk;qDr }kjk lQkbZ lk{; esa fyLV lQkbZ lk{kh izLrqr djus dk Hkh dFku fd;k x;k ,oa blh dze esa vkosnd ckcw dh vksj ls ;kfpr lk{kh varxZr lQkbZ lk{; Mkti vfHkthr oekZ dk lk{; tfj;s ohfM;ks dkUQszflax Mh0MCywti 3 ds :i esa fnukad 25-04-2024 dks vafdr fd;k x;k gSA rnksijkUr vkosnd QSt dh vksj ls muds fo}ku vf/koDrk Jh vCnqy vtht [kka }kjk fnukad 02-08-2024 dks izkFkZuki= v&58 ds ek/;e ls lk{khx.k ih0MCywti&1 esjkt] o lk{kh ih0MCywti&10 ,ltivkbZ0 mekdkar feJk dks iqu% ftjg gsrq U;k;ky; esa ryc djus ds fy;s o vkosnd ckcw ds fo}ku vf/koDrk Jh vCnqy vtht [kka dh vksj ls fnukad 30-07-2024 dks c&60 izkFkZuki= mijksDRk izLrqr dj lk{khx.k ih0MCywti 1 esjkt] ih0MCywti 2 vCnqy dkfnj] ih0MCywti 3 egQwt vgen] ih0MCywti 4 unhe dks ryc dj ftjg djus dh ;kpuk dh x;h gSA izLrqr izdj.k esa ekuuh; mPp U;k;ky; }kjk izdj.k dks Rofjr fuLrkfjr djus ds fy, dbZ ckj fn'kk funsZ'k tkjh fd;s x;s gSa] fdUrq vfHk;qDrx.k dh vksj ls ckj&ckj izkFkZuki= varxZr /kkjk 311 natiiztilati izLrqr dj] bl izdkj.k ds Rofjr fuLrkj.k esa foyEc dkfjr dj jgs gSaA mijksDRk lEekfur fof/k O;oLFkk dk llEeku voyksdu mijkUr ;g U;k;ky; mijksDr fof/k O;oLFkk esa vo/kkfjr fl)karksa ls lger gSA pwafd izLrqr izdj.k esa vfHk;kstu }kjk lk{kh ih0MCywti 1 yxk;r ih0MCywti 15 ijhf{kr djk;k tk pqdk gS rFkk orZeku esa i=koyh lQkbZ lk{; ds :i esa Mh0MCywti 3 dk lk{; Hkh vafdr gks pqdk gSA vfHk;qDrx.k@vkosndx.k dh vksj ls vHkh rd lQkbZ lk{; gsrq fyLV xokg izLrqr ugha fd;k x;k gSA ;kfpr lkf{k;ksa ds ifjizs{; esa mijksDr foospu ls Li"V gS fd rF; ds mijksDr lk{kh ih0MCywti 1]2]3 o 4 ftUgsa vkosnd ryc djkuk pkgrk gS] dk lk{; iw.kZ gks pqdk gS ,oa vkosnd@vfHk;qDrx.k ds iwoZ fo}ku ofj"B vf/koDrk Jh o`tiky flag }kjk izfrijh{kk iw.kZ dh tk pqdh gSA lk{kh ih0MCywti 10 ftls izfrijh{kk gsrq iqu% ryc djkuk pkgk x;k gS] og lk{kh ,ltivkbZ0 mekdkar feJk vkSipkfjd lk{kh gS] fnukad 20-05-2022 dks vkosndx.k dks ftjg gsrq i;kZIr volj nsus ij Hkh budh vksj ls ftjg u fd;s tkus ij ftjg dk volj lekIr fd;k x;k gSA vkosnd QSt dh vksj ls izLrqr izkFkZuki= v&52 varxZr /kkjk 311 natiiztilati fnukad 08-04-2024 dks fujLr fd;k tk pqdk gS] ftlds fo:) vkosndx.k dh vksj ls ekuuh; mPp U;k;ky; esa izkFkZuki= varxZr /kkjk 482 natiiztilati uati 4045@2024] QSt [kka mQZ ft;kmy }kjk Qkfrek [kku ¼ekrk½ cuke LVsV vkQ ;wtiihti }kjk iz/kku lfpo] x`g o vU; izLrqr djus ij ekuuh; mPp U;k;ky; us mDr izkFkZuki= dks fnukad 02-05-2024 dks [kkfjt djrs gq, fopkj.k U;k;ky; dks izdj.k dks Rofjr fuLrkfjr djus dk funsZ'k fn;k x;kA mijksDRk rF;ksa ,oa ifjfLFkfr;ksa dks n`f"Vxr j[krs gq, izkFkZuki= iks"k.kh; ugha gSA rnUkqlkj mHk; izkFkZuki= v&58 o c&60] fujLr fd;s tkus ;ksX; gSA vkns'k vkosndx.k@vfHk;qDrx.k dh vksj ls izLrqr izkFkZuki= v&58 ,oa c&60] vUrxZr /kkjk&311 natiiztilati] fujLr fd;k tkrk gSA rnUkqlkj vkifRr fuLrkfjr dh tkrh gSA i=koyh okLrs cgl@lQkbZ lk{; 08-08-2024 dks is'k gksA" It would be apt to indicate that earlier an application was preferred by another accused-applicant namely Faiz Khan @ Ziaul through Fatima Khan (Mother) under Section 311 CrPC and the same was rejected vide order dated 08.04.2024 by the trial Court and challenging the same, the said accused approached this Court by means of APPLICATION U/S 482 No. - 4045 of 2024. This Court, after considering the facts of the case, vide order dated 02.05.2024 dismissed the application with observations that the trial Court may conclude the trial expeditiously. The order dated 02.05.2024 reads as under:- "Heard Sri Jyotiresh Pandey, the learned counsel for the applicant and Sri Ashok Kumar Singh, learned A.G.A.-I for the State and perused the record. This application under Section 482 Cr.P.C. has been filed to set-aside the order dated 08.04.2024; to issue direction to respondent No.2-the Additional District Judge (F.T.C.-II), District Bahraich for not proceeding the final arguments in the Criminal trial, during the pendency of the instant application before this Court; to issue directions to the respondent No.2-the Additional District Judge (F.T.C.-II), District Bahraich for summoning the witnesses prayed by the applicant and permit the examination by the applicant's counsel and to issue directions to the respondent No.2-the Additional District Judge (F.T.C.-II), District Bahraich to adhere with the Precedent and proposition of law decided by the Hon'ble Supreme Court of India and the Hon'ble High Courts. Learned counsel for the applicant submits that the applicant has been falsely implicated in Crime No. 73 of 2019, Police Station Dargah Shareef, Bahraich under Sections 302, 307, 323, 504, 506, 34 I.P.C. and Criminal Law Amendment Act and is in Jail Since

07.02.2019. Learned counsel for the applicant further submits that the applicant had filed an Application under Section 311 Cr.P.C. before the learned trial court and the trial court vide impugned order dated 08.04.2024 rejected the application of the applicant. Learned counsel for the applicant further submits that the earlier Advocate, who was engaged by the applicant could not pursue the matter promptly and could not examine the important witnesses of case, thus for better adjudication of the case, the witnesses (the list of witnesses given in the application) are necessary to be cross-examined in the present case. Sri Ajay Singh, learned A.G.A. for the State-opposite party No.1 whereas opposed the argument of learned counsel for the applicant and submits that the application moved by the applicant under Section 311 Cr.P.C. is nothing, but a ploy to delay the trial of the present case. The accused are facing trial under Section 302, 307, 323, 504, 506, 34 I.P.C. and Criminal Law Amendment Act. All the important witnesses have already been examined and the statement of the accused under 313 Cr.P.C. has already been recorded and were given final chance to cross-examine defence witnesses on several dates and several opportunities were given by the trial court, but the applicant did not avail the same in time and further adjournments and dates were sought and ultimately on 22.11.2023 the accused Mohd. Faiz Khan produced DW-2 Smt. Fatima Khan and no other witnesses were produced, thus it was submitted that the list given by the present applicant for their witnesses are not necessary witnesses and now he has changed his Advocates, which is nothing but a tactics adopted to delay the trial. The application lacks merit and is liable to be dismissed. Learned A.G.A. further submits that this Hon'ble Court has already given a direction to the trial Court to expedite the trial, but the order has not been annexed by the applicant in the present application. After hearing learned counsel for the parties and after perusal of record, this Court finds that more than 15 witnesses have already been examined by the trial court, who was important for adjudication of the case and even the statement of the accused under Section 313 Cr.P.C. and the statement of defence witnesses were also recorded by the trial Court in spite of the several opportunities given to the accused, now the application which was moved by the applicant at this stage that the earlier counsel did not examine all the important witnesses is not a ground to entertain the application under Section 311 Cr.P.C.. Merely, changing the Advocate will not justify the case of the accused and is not a ground to allow him to cross-examine further witnesses, whereas 15 witnesses have already been examined in the present case, thus there appears force in the argument of learned A.G.A. for the State that the applicant is adopting a tactics to delay the trial of the present case, thus the relief sought by the applicant cannot be granted by this Court and the instant application lacks merit and is liable to be dismissed. Dismissed accordingly. The Trial Court may conclude the trial expeditiously, as per the time granted by the High Court, without granting any unnecessary adjournment to either of the parties, unless there is some legal impediment or unless there is any order passed by the higher court staying the proceedings of the case." In the aforesaid background of the case, present application has been filed challenging the order dated

07.08.2024. Learned counsel for the applicant impeaching the order dated 07.08.2024 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. 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. 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

07.08.2024 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). 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. 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. 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). 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

¶135In 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." 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". 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, in relation to whom the application under Section 311 CrPC was moved by applicant(s) namely Meraj (PW-1), Abdul Qadir (PW-2), Mahfooz Ahmad (PW-3) and Nadeem (PW-4), were duly cross examined by Sri Brij Pal Singh, Advocate, Counsel engaged by the accused-applicant.

(ii) The application preferred by the co-accused Faiz Khan @ Ziaul under Section 311 CrPC was rejected vide order dated

08.04.2024 by the trial Court and challenging the same, an APPLICATION U/S 482 No. - 4045 of 2024 has been filed, which was dismissed by this Court vide order dated 02.05.2024 with direction/observation to trial Court to conclude the trial expeditiously.

(iii) The application under Section 311 CrPC in issue was moved by the Counsel engaged subsequently by the applicant and as per judgment passed in the case of State (NCT of Delhi) (Supra), mere change of counsel cannot be a ground to recall the witness. For the reasons aforesaid, the instant application is hereby dismissed. No orders as to costs. Order Date :- 30.9.2024 Vinay/- High Court of Judicature at Allahabad, Lucknow Bench