Allahabad High Court

ASIF MIYANversusSTATE OF U.P.

Decided: 10 September 2026
Bench: SANJAY KUMAR PACHORI

Holding

The orders denying cross‑examination were quashed as they violated the principle of a fair trial, and the applicant was granted the opportunity to cross‑examine the witnesses.

Summary

The applicant, Asif Miyan, filed an application under Section 528 of the Bhartiya Nagrik Suraksha Sanhita, 2023, seeking to quash two orders of the Sessions Judge, Rampur, which had denied him the opportunity to cross‑examine PW‑5 (Constable Dheer Singh) and PW‑9 (S.I. Sohan Lal). The applicant argued that the denial infringed his right to a fair trial under Article 21 of the Constitution and that the witnesses were formal and the chief examination of PW‑9 was recorded via video‑conferencing. The State opposed the application but did not dispute the factual matrix. The High Court, relying on Supreme Court precedents such as Dr. Rajesh Talwar v. CBI and Natasha Singh v. CBI, emphasized that the fairness of trial is a sacrosanct principle and that courts have discretionary power under Section 311 of the Cr.P.C. to allow cross‑examination. Consequently, the Court held that the impugned orders were unsustainable and quashed them, directing the trial court to summon the witnesses for cross‑examination without undue adjournments. The application was therefore allowed.

Issues considered

The denial of cross‑examination of PW‑5 and PW‑9 violates the accused's right to a fair trial under Article 21.
Whether the trial court erred in refusing to grant the applicant an opportunity to cross‑examine under Section 528 of the BNS Act.
Whether the discretion under Section 311 of the Criminal Procedure Code mandates allowing cross‑examination in the interest of justice.

Legislation cited

Bhartiya Nagrik Suraksha Sanhita, 2023 — s. 528
Code of Criminal Procedure, 1973 — s. 311

Subjects

fair trial
right to cross‑examine
Section 528 BNS Act
Section 311 CrPC
quash order
criminal procedure
Article 21
Article 14

Judgment

HIGH COURT OF JUDICATURE AT ALLAHABAD

APPLICATION U/S 528 BNSS No. - 35452 of 2026

Asif Miyan
.....Applicant(s)
Versus
State of U.P.
.....Opposite
Party(s)

Counsel for Applicant(s) : Sarvar Ali
Counsel for Opposite Party(s) : G.A.

Court No. - 77
HON'BLE SANJAY KUMAR PACHORI, J.

1. Shri Sarvar Ali, learned counsel for the applicant and Shri Chhavi Pal
Singh, learned A.G.A. for the State are present.

2. The present application under Section 528 of Bhartiya Nagrik Suraksha
Sanhita, 2023 has been filed by the applicant to quash the orders dated
20.3.2025 and 13.7.2026 passed by Sessions Judge, Rampur in Session Trial
No. 7 of 2024, arising out of case crime No. 113 of 2020, under Sections
323, 325, 504, I.P.C., Police Station- Kemari, District Rampur, whereby an
application to grant an opportunity to the present applicant to cross-examine
PW-5, Constable Dheer Singh (scribe of F.I.R.) and PW-9, S.I. Sohan Lal
(Investigating Officer) has been rejected.

3. Learned counsel for the applicant submits that the impugned orders have
been passed without considering the facts, circumstances and position of
law. It is further submitted that PW-5 and PW-9 are formal witnesses and the
chief examination of PW-9, S.I. Sohan Lal was recorded through video
conferencing.

4. Learned A.G.A. has not denied the factual position of case.

5. There is no other point for consideration except to grant an opportunity
to the present applicant to cross-examine PW-5 and PW-9. Due to this
reason, the opportunity to hear first informant is dispensed with.

6. 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:

"10. This Court in Selvi J. Jayalalithaa & Ors. v. State of Karnataka
NA528 No. 35452 of 2026
2

& 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:

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.

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.

xx xx xx xx

Article 12 of the Universal Declaration of Human Rights
provides for the right to a fair trial what is enshrined in
NA528 No. 35452 of 2026
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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."

7. 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:-"

"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:

`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.'

xxx xxx xxx xxx

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 cross-examine 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."

8. In view of the above facts and circumstances, keeping in mind the settled
position of law in Natasha Singh (supra) and Dr. Rajesh Talwar (supra)
and without going into the merits of the case, impugned orders are not
NA528 No. 35452 of 2026
4

sustainable. Hence, the application is allowed. The orders dated 20.3.2025
and 13.7.2026 are quashed. The trial court is directed to issue summons to
PW-5 and PW-9 for cross-examination and the applicant is directed to
complete the cross-examination on first appearance of the witnesses without
any unnecessary adjournment.

September 11, 2026
T. Sinha
(Sanjay Kumar Pachori,J.)

Digitally signed by :-
TRIPTI SINHA
High Court of Judicature at Allahabad

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