Allahabad High Court
ILYASversusSTATE OF U.P. AND ANOTHER
- Decided
- Bench
- SANJAY KUMAR PACHORI
Holding
The Court held that the applicant’s application is not bona‑fide and dismissed the petition.
Summary
The applicant, Ilyas, filed an application under Section 528 of the Bhartiya Nagrik Suraksha Sanhita, 2023 seeking to quash an order dated 10 September 2026 that had rejected his earlier application under Section 311 of the Criminal Procedure Code in a Session Trial concerning offences under various IPC sections. The applicant, who had absconded and failed to produce the six defence witnesses he had earlier sought to call, argued that the trial court’s refusal to recall the witnesses violated his right to a fair trial. The State, represented by the Additional Government Advocate, contended that the applicant’s repeated applications were not bona‑fide and were intended only to delay the proceedings. The Court, relying on the Supreme Court’s decision in State (NCT of Delhi) v. Shiv Kumar Yadav, held that recall of witnesses must be justified by tangible reasons and cannot be granted merely to avoid delay. Finding no merit in the applicant’s claim and deeming the application not bona‑fide, the Court dismissed the petition. The judgment was delivered on 24 September 2026 by Justice Sanjay Kumar Pachori.
Issues considered
- Whether the application under Section 528 BNSS to quash the order rejecting a Section 311 CrPC application is maintainable.
- Whether the applicant’s request for recall of defence witnesses is bona‑fide and necessary for a fair trial.
- Whether the trial court erred in dismissing the applicant’s second application under Section 311 CrPC.
Legislation cited
- Bhartiya Nagrik Suraksha Sanhita — s. 528
- Code of Criminal Procedure, 1973 — s. 311
- Indian Penal Code — s. 147, 148, 149, 302, 307, 324
Subjects
- Section 528
- Bhartiya Nagrik Suraksha Sanhita
- Section 311 CrPC
- witness recall
- bona fide
- trial delay
- quash order
- criminal procedure
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 40948 of 2026
Ilyas
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)
Counsel for Applicant(s) : Shiv Shanker Mishra
Counsel for Opposite Party(s) : G.A.
Court No. - 77
HON'BLE SANJAY KUMAR PACHORI, J.
1. Heard Shri Shiv Shanker Mishra, learned counsel for the applicant and
Shri Tej Bhan Singh, learned A.G.A. for the State.
2. The present application under Section 528 of Bhartiya Nagrik Suraksha
Sanhita, 2023 has been filed by the applicant to quash the order dated
10.9.2026 passed in Session Trial No. 243 of 2016, arising out of case crime
No. 715 of 2011, under Sections 147, 148, 324/149, 307/149, 302/149,
I.P.C., Police Station- Azim Nagar, District Rampur, whereby an application
under Section 311, Cr.P.C. has been rejected, pending in the court
of Additional Sessions Judge, Court No. 1, Rampur.
3. Learned A.G.A. pointed out that the present applicant is accused in the
aforesaid Session Trial and other co-accused persons have been convicted by
the trial court in separate Session Trial. After absconding the present
applicant, trial against the present applicant was separated. It is further
submitted that on 20.11.2025, applicant filed an application to produce six
witnesses in defence, which was allowed on 3.12.2025, but applicant had not
produced any witness on several dates fixed for defence evidence.
Thereafter, case was listed for argument. During this period an application
under Section 311, Cr.P.C. was also decided on 18.7.2026 and the present
application is second application for same relief under Section 311, Cr.P.C.,
which has been dismissed by the trial court after observing that the
applicant/accused wants to linger the conclusion of trial. The application in
question is not bona fide.
4. Learned A.G.A. has not denied the factual position of the case.
NA528 No. 40948 of 2026
2
5. In State (NCT of Delhi) Vs. Shiv Kumar Yadav, (2016) 2 SCC 402 in
para 27, it has been observed by the Apex Court hereunder:-
"....It is not only matter of delay but also of harassment for the witnesses
to be recalled which could not be justified on the ground that the accused
was in custody and that he would only suffer by prolonging of the
proceedings. Certainly recall could be permitted if essential for the just
decision but not on such consideration as has been adopted in the present
case. Mere observation that recall was necessary "for ensuring fair trial"
is not enough unless there are tangible reasons to show how the fair trial
suffered without recall. Recall is not a matter of course and the discretion
given to the court has to be exercised judiciously to prevent failure of
justice and not arbitrarily. While the party is even permitted to correct its
bona fide error and may be entitled to further opportunity even when such
opportunity may be sought without any fault on the part of the opposite
party, plea for recall for advancing justice has to be bona fide and has to
be balanced carefully with the other relevant considerations including
uncalled for hardship to the witnesses and uncalled for delay in the
trial."
6. In view of the above facts and circumstances, no case is made out and
deserves no merit.
7. The petition is dismissed accordingly.
September 24, 2026
T. Sinha
(Sanjay Kumar Pachori,J.)
Digitally signed by :-
TRIPTI SINHA
High Court of Judicature at Allahabad
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