IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRL.) NO. ……………………/2023

IN THE MATTER OF:

Sahdeo Sah …Petitioner

Versus

The State of Bihar …Respondent

OFFICE REPORT ON LIMITATION

1. The Petition is/are within limitation

2. The Petition is barred by time and there is delay of ……days in filing the
same against the order dated 02.11.2010 and petition for condonation of
…… days delay has been filed.

3. There is a delay of ….. days in refiling the petition and petition for
condonation of …… days delay in refiling has been filed.

BRANCH OFFICER

NEW DELHI
DATED:
 A-1

PROFORMA FOR FIRST LISTING

SECTION –

The case pertains to (Please tick/ check the correct box):

Central Act: (Title) Indian Penal Code

Section: 311
Central Rule: (Title) Not Applicable

Rule No(s): Not Applicable

State Act: (Title) Not Applicable

Section: Not Applicable
State Rule: (Title) Not Applicable
Rule No. (s): Not Applicable
Impugned Interim Not Applicable
Order: (Date)

Impugned Final Order/ Not Applicable

Decree: (Date)

High Court: (Name) Not Applicable

Names of Judges: Not Applicable

Tribunal/ Authority: Not Applicable

(Name):

1. Nature of matter: Criminal

2. (a) Petitioner/Appellant No. 1 Sahdeo Sah
(b) E-mail ID: NA
(c) Mobile Ph. No. NA
3. (a) Respondent No. 1: The State of Bihar
(b) E-mail ID: NA
(c) Mobile Ph. No. NA
4. (a) Main category classification: 14
(b) Sub classification 1418
5. Not to be listed before NA
6. (a) Similar disposed of matter with No similar matter has been
citation if any, & case details: disposed of
 (b) Similar pending matter with case No similar matter pending
details:

7. Criminal Matters Yes

(a) Whether accused/ convict has Yes

surrendered:
(b) FIR No. 32/2016
(c) Date: 21.03.2016
(d) Police Station: Vidyapatinagar

(e) Sentence Awarded NA

(f) Period of sentence undergone 5 years, 11 months, 15 days

including period of detention/custody
undergone:

8. Land Acquisition Matters: NA

(a) Date of Section 4 notification: NA
(b) Date of section 6 notification: NA
(c) Date of Section 17 Notification: NA
9. Tax matters: State the tax effect: NA
10. Special Category (first In custody
petitioner/appellant only):
(a) Senior Citizen NA
(b) SC/ST NA
(c) Woman/Child NA
(d) Disabled NA
(e) Legal Aid Case NA
(f) In Custody Yes
11 Vehicle Number (in case of Motor NA
Accident Claim matters):

Date: 19.10.2023

RAKESH KUMAR
Advocate on Record for the Petitioners
E-mail: matwa2006@gmail.com
C.C. No. 2558
(M) 9711749492
 SYNOPSIS AND LIST OF DATES

The Petitioner’s inviolable right to a fair trial has been adversely affected under
the mandate of impugned judgment and final order dated 10.07.2023 passed by
the Ld. Single Judge of the Ld. High Court of Judicature at Patna (hereinafter
referred to as “Ld. High Court”) in Criminal Miscellaneous No. 20208 of 2022
wherein the Ld. High Court has been pleased to dismiss the Petitioner’s petition
under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to
as “Cr.P.C.”) challenging the dismissal of Petitioner’s application under Section
311 of Code of Criminal Procedure, 1973 seeking recall of PW-14 namely Iqbal
Ahmad Khan, the Investigating Officer investigating FIR No. 32 of 2016
registered PS Vidyapatinagar, Samastipur, Bihar by the Ld. Additional Sessions
Judge, Samastipur, Bihar (hereinafter referred to as the “Ld. Trial Court”)

The Courts below failed to appreciate that it is a fundamental proposition of

criminal law that graver the crime, higher is the standard of proof required to
establish it.

It is to be borne in mind that the Petitioner is languishing in jail since nearly 5

years and is facing trial for offences under Section 302 of the Indian Penal Code.
Under such circumstance, the Courts below ought to have been circumspect in
dismissing the Petitioner’s Application under Section 311 of the Cr.P.C. The
Petitioner was merely seeking recall of the Investigating Officer, an independent
witness, to draw his attention to statements of some witnesses whose statements
in examination in chief differed from their statements recorded under Section
161 Cr.P.C.

The Courts below have also ignored the cautions culled out by this Hon’ble
Court in its judgment in Rajaram Prasad Yadav v. State of Bihar, (2013) 14 SCC
461. The relevant passage from the said judgment is elaborated below for the
ready reference of this Hon’ble Court:

“j) Exigency of the situation, fair play and good sense should be the safeguard,
while exercising the discretion. The Court should bear in mind that no party in a
trial can be foreclosed from correcting errors and that if proper evidence was
not adduced or a relevant material was not brought on record due to any
inadvertence, the Court should be magnanimous in permitting such mistakes to
be rectified.

k) The Court should be conscious of the position that after all the trial is
basically for the prisoners and the Court should afford an opportunity to them in
the fairest manner possible. In that parity of reasoning, it would be safe to err in
favour of the accused getting an opportunity rather than protecting the
prosecution against possible prejudice at the cost of the accused. The Court
should bear in mind that improper or capricious exercise of such a discretionary
power, may lead to undesirable results.

l) The additional evidence must not be received as a disguise or to change the

nature of the case against any of the party.

m) The power must be exercised keeping in mind that the evidence that is likely
to be tendered, would be germane to the issue involved and also ensure that an
opportunity of rebuttal is given to the other party.

n) The power under Section 311 Cr.P.C. must therefore, be invoked by the Court
only in order to meet the ends of justice for strong and valid reasons and the
same must be exercised with care, caution and circumspection. The Court should
bear in mind that fair trial entails the interest of the accused, the victim and the
society and, therefore, the grant of fair and proper opportunities to the persons
concerned, must be ensured being a constitutional goal, as well as a human
right”.

Hence the present SLP with the following events set forth in chronological order
hereinbelow:

20.03.2016 One Anshu Kumar is allegedly shot by unknown persons.

Relatives of Anshu Kumar allege Petitioner’s involvement in
the aforesaid shooting.

21.03.2016 FIR No. 32 of 2016 is registered PS Vidyapatinagar,

Samastipur, Bihar

26.03.2016 Aforesaid Anshu Kumar succumbs to his injuries. Resultantly,

Section 302 is added to the FIR.

26.02.2016 PW-14 namely Iqbal Ahmad Khan, the Investigating Officer is

cross examined and discharged. Due to oversight of the counsel
representing the Petitioner before the Ld. Trial Court, attention
of Iqbal Ahmad Khan is not drawn to statements of certain
 witnesses whose deposition before the Ld. Trial Court under
Section 164 Cr.P.C. were in stark contrast to their statements
under Section 161 Cr.P.C.

31.08.2021 Petitioner files an application under Section 311 CrPC and

seeks recall of Iqbal Ahmad Khan.

A copy of Petitioner’s Application dated 31.08.2021 under

Section 311 Cr.P.C. seeking recall of Iqbal Ahmad Khan is
annexed hereto and marked as ANNEXURE P/1. (Page No. __
to __).

26.02.2022 Ld. Trial Court dismisses the Petitioner’s Application under

Section 311 CrPC on legally untenable grounds.

A copy of order dated 26.02.2022 passed by Ld. Additional

Sessions Judge, Samastipur, Bihar dismissing the Petitioner’s
Application under Section 311 CrPC is annexed hereto and
marked as ANNEXURE P/2 (Page No. __ to __).

10.07.2023 Petitioner challenges the dismissal of his application under

Section 311 CrPC by filing Criminal Miscellaneous No. 20208
of 2022.

Ld. High Court dismisses the said petition without even

touching upon the merits of the present case.

A copy of the memo of Petitioner’s petition under Section 482

CrPC filed in the Ld. High Court challenging the dismissal of
Application u/s 311 Cr.P.C. by the Ld Trial Court is annexed
hereto and marked as ANNEXURE P/3 (Page No. __ to __).

Hence, the present petition.

 IN THE SUPREME COURT OF INDIA

(CRIMINAL APPELLATE JURISDICTION)

(Under Order XXII Rule 2)

SPECIAL LEAVE PETITION

(Under Article 136 of the Constitution of India)

SPECIAL LEAVE PETITION (CRL.) NO. ……………………/2023

(Arising out of the impugned judgment and final order dated 10.07.2023 passed
by the Ld. Single Judge of the Ld. High Court of Judicature at Patna in Criminal
Miscellaneous No. 20208 of 2022)

BETWEEN POSITION OF THE PARTIES

IN THE IN THE HIGH IN THIS

TRIAL COURT COURT
COURT

1. Sahdeo Sah Accused Petitioner Petitioner

VERSUS

1. The State of Bihar Prosecutor Respondent Contesting

Through its Home Respondent
Secretary, Home
Secretariat, Haryana,
Chandigarh

To,

THE HON’BLE CHIEF JUSTICE OF INDIA AND HIS COMPANION

JUSTICE OF THE HON’BLE SUPREME COURT OF INDIA.

THE HUMBLE PETITION OF THE PETITIONER

ABOVE NAMED.

MOST RESPECTFULLY SHOWETH:

1. The present petition is directed against the final order dated 10.07.2023
passed by the Ld. Single Judge of the Ld. High Court of Judicature at
Patna (hereinafter referred to as “Ld. High Court”) in Criminal
Miscellaneous No. 20208 of 2022 wherein the Ld. High Court has been
pleased to dismiss the Petitioner’s petition under Section 482 of Code of
Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”)
challenging the dismissal of Petitioner’s application under Section 311 of
Code of Criminal Procedure, 1973 seeking recall of PW-14 namely Iqbal
Ahmad Khan, the Investigating Officer investigating FIR No. 32 of 2016
registered PS Vidyapatinagar, Samastipur, Bihar by the Ld. Additional
Sessions Judge, Samastipur, Bihar (hereinafter referred to as the “Ld.
Trial Court”).

2. QUESTION OF LAW:

The following question of law arises for the consideration of this Hon’ble
Court:

i. Whether it is safe to mechanically dismiss an application under

Section 311 of the Cr.P.C. when the applicant of such an
application is facing trial for serious offences such as Section 302
IPC?

ii. Whether the Courts should not follow the fundamental proposition
of criminal law that graver the crime, higher is the standard of
proof required to establish it?

iii. Whether the Ld. High Court in the instant case has been fair to the
Petitioner keeping in mind the Petitioner is facing charges for
serious offences?

iv. Whether the delay in filing an application under Section 311

Cr.P.C. is a valid ground to reject such an application?
 v. Whether it is right for an accused to suffer for the negligence of his
counsel?

vi. Whether any grave prejudice would cause to anyone if an

independent witness such as the Investigating Officer is recalled?

3. DECLARATION IN TERMS OF RULE 2(2):

The Petitioner states that no other petition seeking special leave to appeal
has been filed by him against the present final order dated 10.07.2023
passed by the Ld. Single Judge of the Ld. High Court of Judicature at
Patna in Criminal Miscellaneous No. 20208 of 2022.

4. DECLARATION IN TERMS OF RULE 4:

The Annexure P/1 to P/…produced along with the SLP are true copies of
the pleadings/ documents which formed part of the records of the case in
the Court/ Tribunal below against whose order the leave to appeal is
sought in the petition.

5. GROUNDS:

Leave to appeal is sought on the following grounds:

A. BECAUSE, the Petitioner is facing charges under Section 302 of

the Indian Penal Code. Keeping in mind gravity of charges, the
Courts below ought to have afforded an opportunity to the
Petitioner to recall the Investigating Officer of the case. Denial of
such an opportunity has deeply prejudiced the petitioner in putting
forth a defence to the allegations contained in the FIR.

B. BECAUSE, the Ld. Trial Court was hyper-technical in dismissing

the Petitioner’s application u/s 311 CrPC on the ground that the
Petitioner in his previous application u/s 311 CrPC did not seek the
recall of Iqbal Ahmad Khan. It is submitted that the Petitioner’s
 application ought to have been adjudged on its own merits. The
approach adopted by the Ld. Trial Court is contrary to law.

C. BECAUSE, no prejudice shall be caused to any party if the

Petitioner is afforded just one opportunity to examine Iqbal Ahmad
Khan. It is submitted that some vital aspects that were not put to
Iqbal Ahmad Khan is purely a mistake on part of the counsel and
the Petitioner must not suffer for the same.

D. BECAUSE, the Courts below failed to appreciate that it is a

fundamental proposition of criminal law that graver the crime,
higher is the standard of proof required to establish it.

E. BECAUSE, the Petitioner is languishing in jail since nearly 5 years

and is facing trial for offences under Section 302 of the Indian
Penal Code. Under such circumstance, the Courts below ought to
have been circumspect in dismissing the Petitioner’s Application
under Section 311 of the Cr.P.C. The Petitioner was merely
seeking recall of the Investigating Officer, an independent witness,
to draw his attention to statements of some witnesses whose
statements in examination in chief differed from their statements
recorded under Section 161 Cr.P.C.

F. BECAUSE, the Petitioner’s constitutional right to a fair trial has

been jeopardized by the mandate of the impugned order. At the
cost of repetition, it is once again submitted that the maximum
punishment for the charges being faced by the Petitioner is capital
punishment. Under such circumstances, an opportunity to the
Petitioner to recall Iqbal Ahmad Khan would be just and proper.

G. BECAUSE, the Courts below should not have been swayed away
by considerations of delay only. In the present case question of
belated justice is pitted against the right of the accused to a fair
trial. Having regard to the fundamental principles enshrined in the
 Constitution of India, the Courts should rather lean in favour of the
latter than the former so that the end result i.e., of rendering of
justice to the parties is actually realised.

6. GROUND FOR INTERIM RELIEF: Not Prayed

7. MAIN PRAYER:

It is, therefore, most respectfully prayed that this Hon’ble Court may
graciously be pleased to:

a) Grant special leave to appeal under Article 136 of the Constitution

of India against the against the impugned final order dated
10.07.2023 passed by the Ld. Single Judge of the Ld. High Court
of Judicature at Patna in Criminal Miscellaneous No. 20208 of
2022

b) Pass such other or further order/ orders as this Hon'ble Court may
deem fit and proper in the facts and circumstances of the case.

8. PRAYER FOR INTERIM RELIEF: NA

AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY

BOUND SHALL EVER PRAY.

Settled by: Mr Prakhar Bhatnagar

Place: New Delhi
Drawn on:
Filed on:

Filed by:

(RAKESH KUMAR)
Advocate for Petitioner