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Allahabad High Court

BITTU ALIAS ARUN KUMARversusSTATE OF U.P. AND ANOTHER

Decided

Holding

The High Court upheld the trial court’s order rejecting the application for further cross‑examination and dismissed the petition.

Summary

The applicant filed an application under Section 528 of the B.N.S.S. challenging a trial court order that rejected his request, under Section 348 B.N.S.S. and Section 311 Cr.P.C., to summon prosecution witness P.W.13 for further cross‑examination. The applicant argued that certain questions remained unanswered, while the State contended that the witness had already been cross‑examined and the application was a tactic to delay the trial. The High Court examined the submissions and the record, noting that the accused had indeed been given a full opportunity to cross‑examine the witness earlier. It held that the trial court’s refusal to recall the witness was justified and not an abuse of process. Consequently, the High Court dismissed the application, finding no illegality in the lower court’s order.

Issues considered

  • Whether the trial court erred in rejecting the application for further cross‑examination of the prosecution witness under Section 348 B.N.S.S. and Section 311 Cr.P.C.
  • Whether the applicant’s request amounts to an abuse of process aimed at delaying the trial

Legislation cited

Subjects

  • cross‑examination
  • prosecution witness
  • abuse of process
  • section 528
  • section 311
  • criminal trial
  • evidence
  • dismissal

Judgment

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                 APPLICATION U/S 528 BNSS No. - 40820 of 2026

Bittu Alias Arun Kumar
                                                           .....Applicant(s)
                                    Versus

State Of U.P. And Another
                                                                .....Opposite
                                                                      Party(s)

Counsel for Applicant(s)                         :   Sanjay Tiwari
Counsel for Opposite Party(s)                    :   G.A.

Court No. - 75
                 HON'BLE DR. GAUTAM CHOWDHARY, J.

1. Heard learned counsel for the applicant, learned A.G.A. for the State
and perused the material brought on record.

2. The instant application under Section 528 B.N.S.S. has been filed
challenging the order dated 25.08.2026 passed by learned Additional
District & Sessions Judge-VIIth, Ghaziabad in Sessions Trial No. 1476 of
2016 (State Vs. Manish and others), arising out of Case Crime No. 624 of
2016, under Sections 147, 148, 149, 307, 326, 120B/ 34 I.P.C. read with
Section 7 of Criminal Law (Amendment) Act and Section 7/25, 27(2) of
Arms Act, Police Station Murad Nagar, District Ghaziabad, whereby the
application under Section 348 B.N.S.S./ 311 Cr.P.C. for summoning the
prosecution witness-P.W.13-Investigating Officer, for further cross
examination has been rejected.

3. Learned counsel for the applicant submits that the application under
Section 348 B.N.S.S./ 311 Cr.P.C. was moved on behalf of the applicant
with the prayer that in the cross examination of the Investigating Officer
(P.W.13) certain questions were remained to be asked, therefore, the said
prosecution witness be summoned for further cross examination, but the
learned Sessions Judge has rejected the said application without
application of mind in cursory manner.

4. Per contra, the learned A.G.A. for the State submits that the application
moved on behalf of the applicant under Section 348 B.N.S.S./ 311 Cr.P.C.
before the trial court was nothing but the same was filed for the purpose
                                                                                           NA528 No. 40820 of 2026
                                                                   2


                                    to delay the trial. The applicant was given adequate opportunity to cross-
                                    examine the said prosecution witness and he had already cross-examined
                                    him. Thus, the trial court has rightly rejected the said application filed by
                                    the applicant by the impugned order. There is no merit in the case and the
                                    present application may be dismissed.

                                    5. I have considered the rival submissions advanced by the learned
                                    counsel for the parties. I have also perused the material available on
                                    record and also gone through the impugned order dated 25.08.2026
                                    passed by the learned Sessions Judge. In the impugned order it has been
                                    observed by the trial court that earlier adequate opportunity was given to
                                    the accused to cross examine the said prosecution witness and he had
                                    already availed the same and now the present application has been moved
                                    on his behalf with the prayer to recall him to cross-examine him again,
                                    which is nothing but an abuse of process of law and it appears that the
                                    applicant wants to linger on the trial anyhow. Thus, there is no illegality
                                    or infirmity in the impugned order and the same has rightly been passed
                                    by the trial court after considering the entire facts and circumstances of
                                    the case. There is no merit in the present application and the same is liable
                                    to be dismissed.

                                    6. Dismissed accordingly.



                                                                                  (Dr. Gautam Chowdhary,J.)
                                    September 23, 2026
                                    Mustaqeem.




Digitally signed by :-
MOHD MUSTAQEEM KHAN
High Court of Judicature at Allahabad


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