HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 40948 of 2026 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. Versus Counsel for Applicant(s) : Shiv Shanker Mishra Counsel for Opposite Party(s) : G.A. Ilyas .....Applicant(s) State of U.P. and Another .....Opposite Party(s) 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 NA528 No. 40948 of 2026 2 (Sanjay Kumar Pachori,J.) Digitally signed by :- TRIPTI SINHA High Court of Judicature at Allahabad