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2021 DIGILAW 399 (ALL)

Bablu @ Vishnu Dhar Dubey v. State of U. P.

2021-03-16

DINESH KUMAR SINGH I

body2021
JUDGMENT : Dinesh Kumar Singh-I,J. Sri Anoop Trivedi, learned Senior Advocate assisted by Sri Atul Kumar Shahi, learned counsel for the applicant, Sri Irfanul Huda, learned counsel for the O.P. No. 2 and Sri Rishi Chaddha, learned A.G.A. for the State are present. The prayer is made for quashing the order-sheet dated 12.02.2021 passed by Additional Sessions Judge/ Special Judge (Prevention of Corruption Act), Court No. 1, District, Gorakhpur passed in S.T. No. 19 of 2015 (State Vs. Govind Yadav and others) arising out of Case Crime No. 463 of 2014 under Sections 147, 148, 149, 307, 302, 386, 396 and 504 I.P.C., P.S. Khorabad, District Gorakhpur. By the impugned order, Application 136 (kha) moved by the accused applicant, has been rejected under Section 319 (4)(a) Cr.P.C. wherein prayer was made that prosecution witness, P.W. 1 should be re-summoned for recording his examination-in-chief as said provision required de novo trial. Further it was mentioned in the said Application that provision of Section 319 (4)(a) was not followed by the court below as it did not record the examination-in-chief of the said witness. The said witness is informant of this case who has given an Application/F.I.R. at the police station (Exhibit Ka-1) which was proved by him. From the side of prosecution, objection was submitted before the court below stating that charge-sheet was not submitted against the accused applicant and after the conclusion of statement of P.W. 1, Shiv Pratap Yadav @ Sadhu Yadav, on 17.08.2015, an Application under Section 319 Cr.P.C. was given whereon the Court had passed an order on 18.07.2016 summoning the said accused i.e. Vidyadhar Dubey @ Bablu Dubey finding prima-facie case made out against him and issued N.B.W. against the said accused for his appearance before the Court on 26.09.2016, thereafter the trial court in consonance with the provisions provided under Section 319 (4) (a) and (b), framed charges against the accused and, thereafter the said witness, Shiv Pratap Yadav @ Sadhu Yadav (P.W.1) was proposed to be re-examined but learned counsel for the said accused i.e. applicant gave in writing that the examination-in-chief of Shiv Prasad Yadav @ Sadhu Yadav had already been recorded on 17.08.2015 and, therefore, he was ready to cross-examine the said witness. Pursuant to that, the court below provided the accused applicant opportunity to cross-examine the said witness and the same was concluded. Pursuant to that, the court below provided the accused applicant opportunity to cross-examine the said witness and the same was concluded. The said fact is evident from the order-sheet dated 22.11.2016 and order-sheets of subsequent dates. Therefore, it was submitted from the side of prosecution before the Court below that no legal error was committed of the principles of law laid down under Section 319 (1)(4) (a) and (b) and, therefore, the said application ought to be dismissed having no force. After having heard both the sides, the court below has recorded in the impugned order that on 22.11.2016, P.W. 1, Shiv Prasad Yadav @ Sadhu Yadav was present in Court and accused Bablu Dubey @ Vidyadhar Dubey (applicant) also remained present in Court and his learned counsel had endorsed on the order-sheet in Hindi that he was ready to cross-examine the informant on the basis of his earlier recorded examination-in-chief dated 17.08.2015. Therefore, in pursuance of that undertaking/written endorsement, learned counsel for the accused applicant started cross-examination of P.W. 1, which could not be concluded the same day, therefore, on the next date also, his cross-examination was recorded and concluded. Thereafter P.W. 2 to P.W. 9 were also recorded fully in presence of the accused applicant and during the entire evidences of nine witnesses having been recorded, counsel for the accused applicant remained present, therefore, it cannot be said that provisions of Section 319 (4)(a) Cr.P.C. was not followed and, hence Application under Section 136 (kha) was found without force and was recorded that there was no need for recording the examination-in-chief of P.W. 1 again i.e. de novo trial with respect to recording of statement of P.W. 1 was not needed. It is also recorded by the trial court that two accused in this case were detained in prison for long and argument of the prosecution has been concluded on 8.01.2021 and for the argument of the defense side, four dates had been fixed but despite various efforts having been made by Court, defense side was not advancing its arguments and, hence it was apparent that only with a view to delaying the disposal of this case, the said application had been moved and accordingly, the same was rejected. Learned counsel for the applicant has vehemently argued that trial court's order is erroneous because it has rejected the Application 136 (kha) whereby prayer was made for resummoning the P.W. 1 again because the provision under Section 319 (4)(a) Cr.P.C. clearly states that proceedings in respect of such person shall be commenced afresh and witnesses re-heard and, therefore, the provision is very much clear that P.W. 1 ought to have been re-summoned and reexamined in presence of the accused applicant despite the fact that there was concurrence/concession given from the side of learned counsel for the accused before the court below that he was ready to cross-examine the said witness on the basis of his earlier recorded examination-in-chief. For proving his point, he has relied upon the judgement of Hon'ble Apex Court in Shashikant Singh Vs. Tarkeshwar Singh and Ors. (2002) 5 SCC 738 , para 9 of which is quoted herein below: "9. The intention of the provision here is that where in the course of any enquiry into, or trial of, an offence, it appears to the court from the evidence that any person not being the accused has committed any offence, the court may proceed against him for the offence which he appears to have committed. At that stage, the court would consider that such a person could be tried together with the accused who is already before the court facing the trial. The safeguard provided in respect of such person is that, the proceedings right from the beginning have mandatorily to be commenced afresh and the witnesses reheard. In short, there has to be a de novo trial against him. The provision of de novo trial is mandatory. It vitally affects the rights of a person so brought before the court. It would not be sufficient to only tender the witnesses for the cross-examination of such a person. They have to be examined afresh. Fresh examination-in-chief and not only their presentation for the purpose of the cross-examination of the newly added accused is the mandate of Section 319(4). The words "could be tried together with the accused" in Section 319(1), appear to be only directory. "Could be" cannot under these circumstances be held to be "must be". They have to be examined afresh. Fresh examination-in-chief and not only their presentation for the purpose of the cross-examination of the newly added accused is the mandate of Section 319(4). The words "could be tried together with the accused" in Section 319(1), appear to be only directory. "Could be" cannot under these circumstances be held to be "must be". The provision cannot be interpreted to mean that since the trial in respect of a person who was before the court has concluded with the result that the newly added person cannot be tried together with the accused who was before the court when order under Section 319(1) was passed, the order would become ineffective and inoperative, nullifying the opinion earlier formed by the court on the basis of the evidence before it that the newly added person appears to have committed the offence resulting in an order for his being brought before the court." It is apparent from the above position of law that in case, an accused is summoned under Section 319 Cr.P.C. to be tried with other accused, fresh examination-in-chief was required to be taken/recorded in his presence and that it was not sufficient to allow only the cross-examination of such witness whose examination-in-chief had been recorded earlier. Learned A.G.A. as well as learned counsel for the informant vehemently opposed the argument stating that once the concession/concurrence has been given by learned counsel for the accused that he was ready to treat earlier recorded examination-in-chief of P.W.1 to be the examination-in-chief, to be read against the accused applicant and on that basis, he proceeded to cross-examine the said witness and not only that, even thereafter, he allowed eight more witnesses to be examined in totality, now it cannot be raised by him again to say that there was lacuna left in the case that it did not meet the requirement of the provision of Section 319 (4)(a) of Cr.P.C. which required de novo trial i.e. trial afresh and further it was stressed by him that in the impugned order, court below has recorded that not only learned counsel for the accused applicant had noted in the order-sheet that he was ready to cross-examine P.W. 1 but it was written on the order-sheet in presence of the party (applicant), therefore, applicant as well as his counsel shall be treated to be estopped by their earlier statements. In support of the said view point, law was required by the Court to be cited from the side of learned A.G.A. but he could not provide any such law which would substantiate the above argument rather the law which has been cited by him appears to place the position of law that a wrong concession made by counsel before the Court on pure question of law, would not be treated to be binding upon the party and it appears that counsel would also include party because in the present case not only counsel but party was also present and any concurrence by even party that he did not require P.W. 1 to be re-examined while law has mandated that witness ought to be re-heard (his statement in chief as well as cross-examination both were recorded in presence of the accused), the said provision ought to have been followed as per the mandate. Even party cannot be allowed to give any concession/concurrence which is not in consonance with the law. Citation which has been provided from the side of learned A.G.A. are as follows:- Union of India and Others Vs. Mohanlal Likumal Punjabi and Others (2004) 3 SCC 628 , para nos. 8 and 9 are as follows:- "8. We shall first deal with the effect of concession, if any, made by learned counsel appearing for the present appellants before the High Court. Closer reading of the High Court's order shows that the High Court took the view that in view of the revocation of the order on 19-12-1994 and the order passed by the High Court on 11-1-1995, no further order could have been passed under Section 7 of the SAFEMA. After having expressed this view, the so-called concession is recorded. In our view the concession, if any, is really of no consequence, because the wrong concession made by a counsel cannot bind the parties when statutory provisions clearly provided otherwise. It was observed by a Constitution Bench of this Court in Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd. [ (1983) 1 SCC 147 ] that courts are not to act on the basis of concession but with reference to the applicable provisions. The view has been reiterated in Uptron India Ltd. v. Shammi Bhan [ (1998) 6 SCC 538 : 1998 SCC (L&S) 1601] and Central Council for Research in Ayurveda & Siddhav. v. Bharat Coking Coal Ltd. [ (1983) 1 SCC 147 ] that courts are not to act on the basis of concession but with reference to the applicable provisions. The view has been reiterated in Uptron India Ltd. v. Shammi Bhan [ (1998) 6 SCC 538 : 1998 SCC (L&S) 1601] and Central Council for Research in Ayurveda & Siddhav. Dr K. Santhakumari [ (2001) 5 SCC 60 : 2001 SCC (L&S) 772] . In para 12 of Central Council case [ (2001) 5 SCC 60 : 2001 SCC (L&S) 772] it was observed as follows: (SCC p. 64, para 12). "12. In the instant case, the selection was made by the Departmental Promotion Committee. The Committee must have considered all relevant facts including the inter se merit and ability of the candidates and prepared the select list on that basis. The respondent, though senior in comparison to other candidates, secured a lower place in the select list, evidently because the principle of 'merit-cum-seniority' had been applied by the Departmental Promotion Committee. The respondent has no grievance that there were any mala fides on the part of the Departmental Promotion Committee. The only contention urged by the respondent is that the Departmental Promotion Committee did not follow the principle of 'seniority-cum-fitness'. In the High Court, the appellants herein failed to point out that the promotion is in respect of a 'selection post' and the principle to be applied is 'merit-cum-seniority'. Had the appellants pointed out the true position, the learned Single Judge would not have granted relief in favour of the respondent. If the learned counsel has made an admission or concession inadvertently or under a mistaken impression of law, it is not binding on his client and the same cannot enure to the benefit of any party." (italicized for emphasis) 9. In Uptron India Ltd. v. Shammi Bhan [ (1998) 6 SCC 538 : 1998 SCC (L&S) 1601] it was held that a case decided on the basis of wrong concession of a counsel has no precedent value. That apart, the applicability of the statute or otherwise to a given situation or the question of statutory liability of a person/institution under any provision of law would invariably depend upon the scope and meaning of the provisions concerned and has got to be adjudged not on any concession made. That apart, the applicability of the statute or otherwise to a given situation or the question of statutory liability of a person/institution under any provision of law would invariably depend upon the scope and meaning of the provisions concerned and has got to be adjudged not on any concession made. Any such concessions would have no acceptability or relevance while determining rights and liabilities incurred or acquired in view of the axiomatic principle, without exception, that there can be no estoppel against statute." It is apparent from the above citation that wrong concession made by counsel before the Court cannot bind the parties when statutory provision clearly provides otherwise. Union of India and Another Vs. S.C. Parashar (2006) 3 SCC 167 , para nos. 11,12 and 13 are as follows:- "11. Before adverting to the said question, we may record that wrong concession of a counsel on a pure question of law is not binding upon a party. It is furthermore trite that non-mentioning or wrong mentioning of a provision in an order may be held to be irrelevant if it is found that the requisite ingredients thereof were available on records for passing the same. We may further notice that the High Court proceeded on the basis that the penalty imposed upon him was a major penalty. 12. The penalty imposed upon the respondent is an amalgam of minor penalty and major penalty. The respondent has been inflicted with three penalties: (1) reduction to the minimum of the timescale of pay for a period of three years with cumulative effect; (2) loss of seniority; and (3) recovery of 25% of the loss incurred by the Government to the tune of Rs 74,341.89p. i.e. Rs 18,585.47p. on account of damage to the Gypsy in 18 (eighteen) equal monthly instalments. Whereas reduction of timescale of pay with cumulative effect is a major penalty within the meaning of clause (v) of Rule 11 of the CCS Rules, loss of seniority and recovery of amount would come within the purview of minor penalty, as envisaged by clauses (iii) and (iii)(a) thereof. The disciplinary authority, therefore, in our opinion acted illegally and without jurisdiction in imposing both minor and major penalties by the same order. Such a course of action could not have been taken in law. 13. The disciplinary authority, therefore, in our opinion acted illegally and without jurisdiction in imposing both minor and major penalties by the same order. Such a course of action could not have been taken in law. 13. However, there cannot be any doubt whatsoever that the disciplinary authority never intended to impose a minor penalty. The concession of the learned counsel appearing for the appellant before the High Court was apparently erroneous. It is now well settled that wrong concession made by a counsel before the court cannot bind the parties when statutory provisions clearly provide otherwise. (See Union of India v. Mohanlal Likumal Punjabi[ (2004) 3 SCC 628 : 2004 SCC (Cri) 844] .) The penalty imposed upon the respondent, in our considered view, therefore, should be kept confined to the reduction to the minimum of the timescale of pay for a period of three years with cumulative effect. The effect of such a penalty has been considered by this Court in Shiv Kumar Sharma v. Haryana SEB [1988 Supp SCC 669 : 1989 SCC (L&S) 51 : (1988) 8 ATC 792 : AIR 1988 SC 1673 ] in the following terms: (SCC pp. 671-72, para 6) "6. We are unable to accept the above contention. The penalty was imposed on 15-4-1968 and, as a result of which, he was deprived of the monetary benefit of one increment for one year only. The penalty by way of stoppage of one increment for one year was without any future effect. In other words, the appellant's increment for one year was stopped and such stoppage of increment will have no effect whatsoever on his seniority. Accordingly, the Board acted illegally and most arbitrarily in placing the juniors of the appellant above him in the seniority list and/or confirming the appellant in the post with effect from 1-12-1969, that is, long after the date of confirmation of the said Respondents 2 to 19. The question of seniority has nothing to do with the penalty that was imposed upon the appellant. The question of seniority has nothing to do with the penalty that was imposed upon the appellant. It is apparent that for the same act of misconduct, the appellant has been punished twice, that is, first, by the stoppage of one increment for one year and, second, by placing him below his juniors in the seniority list." It is apparent from the above citation that wrong concession made by counsel before Court on pure question of law, was not binding upon the party. Director of Elementary Education, Orissa and Others Vs. Pramod Kumar Sahoo 2019 (10)SCC 674 para 11 of which is as follows:- "11. The concession given by the learned State Counsel before the Tribunal was a concession in law and contrary to the statutory rules. Such concession is not binding on the State for the reason that there cannot be any estoppel against law. The rules provide for a specific grade of pay, therefore, the concession given by the learned State Counsel before the Tribunal is not binding on the appellant." It is apparent from the above citation that concession made by advocate contrary to statutory rules, is not binding on State as there cannot be estoppel against law. Another ruling, Harinarayan G. Bajaj Vs. State of Maharashtra & Others (2010)11 SCC 520 relates to Complaint Case but Principle of Law with respect to Section 319 Cr.P.C. would remain the same, hence, relevant para 20 of this ruling is as follows: "20.Therefore, the situation is clear that under Section 244 CrPC the accused has a right to cross-examine the witnesses and in the matter of Section 319 CrPC when a new accused is summoned, he would have similar right to cross-examine the witness examined during the inquiry afresh. Again, the witnesses would have to be reheard and then there would be such a right. Merely presenting such witnesses for cross-examination would be of no consequence. This Court has already held so in Shashikant Singh v. Tarkeshwar Singh [ (2002) 5 SCC 738 : 2002 SCC (Cri) 1203] ." It is apparent from the above citation that merely providing a witness in such a situation for cross-examination would be of no consequence because witness has to be re-heard keeping in view the principle of de novo trial which includes examination-in-chief as well. After having gone through the arguments of rival sides, this Court is of the view that the law is very clear in respect of an accused who has been summoned to face trial under Section 319 Cr.P.C. that the moment he has been produced as an accused before Court, the trial would revert back to the first stage of trial and the entire evidence has to be recorded again afresh in keeping with the mandate of law that trial has to be a de novo trial and on the basis of citations which have been relied upon by the learned A.G.A. quoted above, it is also very clear that there can be no estoppel against law, therefore, if law lays down that a particular procedure has to be followed while conducting a de novo trial, it has to be followed in letter and spirit as mandated under law and no deviation can be allowed to happen even at the concession/concurrence given by counsel or party of any side. In the case at hand, it appears that learned counsel for the applicant/ accused when facing trial before the court below, had given in writing that he was ready to cross-examine P.W. 1 and whatever he had stated in examination-in-chief before summoning of the accused applicant can be taken to be an examination-in-chief recorded against the accused applicant but that would be against the principle of law laid down under Section 319 (4) (a) of Cr.P.C. as it mandated de novo trial which would include re-recording of evidence of all witnesses. In the present case, there is no dispute with respect to recording of statements of other witnesses of prosecution i.e. P.W. 2 to P.W. 9 in presence of accused applicant in totality but dispute is there only with regard to not recording the statement (examination-in-chief) of P.W. 1 in presence of the applicant and his counsel because of the written consent having been given on their part that they were ready to cross-examine the said witness, therefore, same is being found against the provision of law. The impugned order suffers from infirmity and present Application under Section 482 Cr.P.C. deserves to be allowed and is, accordingly allowed. Application of the applicant has been wrongly dismissed by the court below, hence impugned order needs to be set-aside and is, accordingly set-aside. The impugned order suffers from infirmity and present Application under Section 482 Cr.P.C. deserves to be allowed and is, accordingly allowed. Application of the applicant has been wrongly dismissed by the court below, hence impugned order needs to be set-aside and is, accordingly set-aside. It is directed that the trial court shall give opportunity to the accused applicant for recording of Examination-in-Chief of the P.W. 1 in his presence and, thereafter he shall also be provided full opportunity to cross-examine the said witness in order to meet the mandate of law. Looking to the fact that this case is very old and the stage of argument is already reached but this infirmity has been pointed out very late, therefore this Court expects that the trial court shall fix specific date for recording the statement (examination-in-chief) of P.W. 1 and would try to conclude the entire evidence of the said witness on the same date or on subsequent consecutive dates till the statement of P.W. 1 is concluded without giving any undue adjournment to either side and would try to conclude this case at the earliest expeditiously.