PAPPY @ ISRAR HUSSAINversusSTATE OF U.P. AND 3 OTHERS

             HIGH COURT OF JUDICATURE AT ALLAHABAD

                 APPLICATION U/S 528 BNSS No. - 8896 of 2026

Pappy @ Israr Hussain
                                                                  .....Applicant(s)
                                    Versus
State Of U.P. And 3 Others
                                                             .....Opposite Party(s)

Counsel for Applicant(s)        :   Mohammad Jamil Akhtar, Shahzad Alam, Sr.
                                    Advocate
Counsel for Opposite Party(s)   :   G.A.

Court No. - 80
                     HON'BLE VIVEK KUMAR SINGH, J.

1. Supplementary affidavit filed today is taken on record.


2. Heard Sri V.M. Zaidi, learned Senior Counsel assisted by Ms. Sufiya
Siddiqui, learned counsel for the applicant and Sri Prashant Kumar Singh,
learned A.G.A. for the State.

3. Present application under Section 528 B.N.S.S. has been filed with the
prayer to set-aside/ quash the order dated 06.01.2026 and the order dated
28.01.2026 passed by the learned Special Judge (POCSO Act)/ Additional
Sessions Judge, Court No.22, Kanpur Nagar, whereby rejecting the
application of the applicant for recalling the order dated 06.01.2026 as well
as the entire proceedings of Special Session Trial No.28 of 2015 (State of
U.P. Vs. Sheebu @ Sarfaraz and others) arising out of Case Crime No.403 of
2014, under Sections 376, 363, 354-Ka, 506 I.P.C., Police Station
Babupurwa, District Kanpur Nagar, pending in the court of Additional
District Judge, Court No.22, Kanpur Nagar.

4. It is submitted by the learned Senior Counsel appearing for the applicant
that the applicant is facing criminal prosecution under Sections 376, 363,
354A and 506 I.P.C. before the learned trial court. The FIR in the present
case was registered on 31.12.2014, and the Investigating Officer submitted
the charge sheet on 31.03.2015. The charges were framed and thereafter the
prosecution adduced evidence in the trial court and took 10 years in
completion of examination of prosecution evidences. Subsequently, the
statement of the accused-applicant under Section 313 Cr.P.C. was recorded
on 04.12.2025. The matter was then fixed for defence evidence on
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11.12.2025; however, on that date, the applicant could not move an
application for adducing defence evidence nor filed the list of defence
witnesses. The learned trial court thereafter fixed 24.12.2025 and
subsequently 06.01.2026 for the said purpose. However, the opportunity to
adduce defence evidence was closed by the learned trial court vide order
dated 06.01.2026. Thereafter, the applicant moved a recall application
seeking recall of the said order dated 06.01.2026; however, the same was
rejected by the learned trial court vide order dated 28.01.2026.

5. Being aggrieved by the aforesaid orders dated 06.01.2026 and 28.01.2026,
the present application under Section 528 B.N.S.S. has been moved by the
applicant.

6. It is further submitted by the learned Senior Counsel appearing for the
applicant that the prosecution took 10 years time in adducing prosecution
evidence. The applicant was not at fault in delay of the present trial. The
learned trial court wrongly and illegally rejected the application moved by
the applicant and closed the defence evidence. The applicant would be
deprived from his valuable legal right to defend himself in case the orders
impugned are not set aside by this court and prayed that the applicant be
allowed to adduce defence evidence in accordance with law.

7. The aforesaid prayer made by the learned counsel for the applicant has
been vehemently opposed by the learned A.G.A. for the State. It is submitted
by the A.G.A. that the applicant is causing delay in the trial and he
knowingly and intentionally did not adduce the defence evidence on
06.01.2026. Therefore, the learned trial court has rightly closed defence
evidence and when application for recalling the order dated 06.01.2026 was
filed, the same was rightly and correctly rejected by the learned trial court
while order dated 28.01.2026.

8. I have heard the rival submissions of the parties and perused the record.

9. Before dealing with the reasoning given by the trial court for rejecting the
application of the applicant for leading defence evidence, it is to be
understood as to what is the scope of Section 233 (3) Cr.P.C. A bare reading
of sub-section (3) of Section 233 Cr.P.C. would reveal that if the accused
applies for the issuance of any process for compelling the attendance of any
witness or the production of any document or thing, the court shall issue
such process unless he considers, for reasons to be recorded, that such
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application should be refused on the ground that it is made for the purpose of
vexation or delay or for defeating the ends of justice. Moreover, the court is
required to record its reasoning for refusing the request to summon a defence
witness. A bare perusal of the Section 233(3) Cr.P.C. would reveal that
except on those grounds the request cannot be turned down on any other
ground. It is also well settled that the trial court cannot deny an accused the
right to summon witnesses, he /she has cited to examine them as defence
witnesses which is his sacrosanct fundamental right.

10. It is well settled that if no acquittal was passed under Section 232
Cr.P.C., the court has to call upon the accused to enter on his defence.
Admittedly, in this case, no judgment of acquittal has been passed under
Section 232 Cr.P.C./255 B.N.S.S., therefore, the provision of Section 233
Cr.P.C./256 B.N.S.S. are fully attracted. The accused has a right to be
provided an opportunity to adduce any evidence in support of his defence.
This right of the accused is a very valuable right which cannot be curtailed in
any way. Therefore, a heavy duty is cast upon the Court to see as to whether
or not the defence evidence sought to be summoned, is necessary for
defending the charge levelled against the accused. If it is so, the trial court
has to summon the defence witnesses and has to adopt a reasonable approach
and in such a matter, should not reject the prayer for summoning defence
evidence except on the grounds provided in sub-section (3) of Section 233
Cr.P.C./256 B.N.S.S.

11. In Kalyani Baskar vs. M.S. Sampoornam; (2007) 2 SCC 258, the
Supreme Court while elaborating the meaning of fair trial observed as
below:-

     "Fair trial" includes fair and proper opportunities allowed by law to
     prove her innocence. Adducing evidence in support of the defence is a
     valuable right. Denial of that right means denial of fair trial. It is
     essential that rules of procedure designed to ensure justice should be
     scrupulously followed, and the courts should be jealous in seeing that
     there is no breach of them."

12. In case the applicant is not provided sufficient opportunity to bring on
record his defence by examining the witnesses, it shall derail fair trial, which
is a valuable right of the applicant and the applicant would not be able to
prove his innocence in the trial.
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13. However, from the record of the present case, it is clear that sufficient
opportunities were granted by the learned trial court to the applicant/
accused to adduce defence evidence but for one or another reason, the
applicant sought adjournments, therefore, the learned trial court closed the
defence evidence vide order dated 06.01.2026.

14. It is submitted by the learned Senior Counsel appearing for the applicant
that one further opportunity may kindly be granted to the applicant to adduce
defence evidence. It is further undertaken that no unnecessary adjournment
shall be sought by the applicant, and that a fresh application for adducing
defence evidence shall be filed within a period of fifteen days from today.

15. On an appreciation of the contentions, it is discernible that an
opportunity for adducing evidence is a part of the right to fair trial.

16. Considering the facts and circumstances of the present case, the present
application is allowed. The impugned orders dated 06.01.2026 and
28.01.2026 are hereby set aside, subject to payment of costs of Rs. 5,000/-,
which shall be deposited before the learned trial court within a period of
fifteen days from today.

17. Upon such deposit, the applicant shall file a fresh application, in
accordance with law, for adducing defence evidence within the same period.
The learned trial court shall consider and decide the said application on its
own merits, without being influenced by its earlier orders dated 06.01.2026
and 28.01.2026, and shall afford proper opportunity to the applicant to
adduce defence evidence.

18. The amount so deposited shall be handed over to the informant/ victim of
the present case.

19. It is made clear that this shall be the last opportunity for moving a proper
application for adducing the defence evidence within the time prescribed
hereinabove and no further adjournment shall be granted to the applicant in
any manner whatsoever.

20. In case the applicant fails to deposit the aforesaid amount within a period
of fifteen days from today and does not move an appropriate application for
adducing defence evidence/ list of witnesses, the learned trial court shall
proceed further in accordance with law.
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                                    21. However, in the event such an application is filed within the prescribed
                                    period, the learned trial court shall consider and decide the same, in
                                    accordance with law. It is expected that the learned trial court will summon
                                    only material witnesses keeping in view of Section 233(3) Cr.P.C. and will
                                    make every endeavour to conclude defence evidence within a period of three
                                    months from today.



                                                                                         (Vivek Kumar Singh,J.)

                                    March 28, 2026
                                    Radhika




Digitally signed by :-
RADHIKA VISHWAKARMA
High Court of Judicature at Allahabad