Allahabad High Court
Achchhe Ram Tiwari And 2 Others vs State Of U.P. Thru. Prin. Secy. Deptt. Of … on 1 October, 2024
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:68097 Court No. - 13 Case :- APPLICATION U/S 482 No. - 8885 of 2024 Applicant :- Achchhe Ram Tiwari And 2 Others Opposite Party :- State Of U.P. Thru. Prin. Secy. Deptt. Of Home Lko. And Another Counsel for Applicant :- Vivekanand Misra Counsel for Opposite Party :- G.A. Hon'ble Saurabh Lavania,J.
1. Heard Shri Vivekanand Misra, learned counsel for the applicants as well as learned A.G.A. for the state and perused the records.
2. The present application has been filed seeking following main relief:-
“to quash the impugned order dated 28.08.2024 passed by Special Judge (POCSO Act)/Additional Sessions Judge Court No.12, Sultanpur, in Special Trial No. 643 of 2019 “State Vs. Achchhe Ram Tiwari and others” arising out of Case Crime No. 0533 of 2019 under section 323, 336, 354 (Kh), 427, 504 & 506 of IPC and section 7/8 of POCSO Act, Police Station – Chanda, District – Sultnapur (as contained in Annexure No.1 to this petition) pending before the court of Special Judge (POCSO Act)/Additional Sessions Judge Court No.12, Sultanpur, in the interest of justice.”
3. By means of the present application, the accused-applicants have approached this Court challenging the order dated 28.08.2024, passed by Special Judge, POCSO Act, Sultanpur/Additional Sessions Judge Court No.12, Sultanpur (in short ‘trial court’), in Special Session Trial No. 643 of 2019 (State Vs. Achchhe Ram Tiwari and others) on an application preferred by the accused-applicants under Section 311 Cr.P.C..
4. Brief facts of the case are to effect that an was lodged against the applicants, under Sections 323, 336, 354kha, 504, 506 and Sections 7/8 Protection of Children against Sexual Offences Act of 2012 (in short “Act of 2012) at Police Station – Chanda, District – Sultanpur registered as Case Crime No. 0533 of 2019. According to this FIR, the applicants tried to outrage the modesty of the niece of the informant, aged about sixteen years, and on raising alarm when her sister tried to defend her then the accused also molested her and tore her clothes and on being opposed, they assaulted the informant with lathi and danda and also abused him and further damaged the motorcycle and cement sheet of the informant.
5. During the investigation, the Investigating Officer (in short “I.O.”) recorded the statement(s) of the various persons including the statement of the victims and the statement of the victims were also recorded before the Court concerned.
6. The statements of the witnesses of the prosecution have not been brought on record though the same were required for proper disposal of the case but the reasons best known to learned counsel for the applicants, the same have not been brought on record.
7. It would be apt to indicate that from the charge-sheet, annexed as Annexure No. 3 to the application, it appears that after considering the statement of the victims recorded under Section(s) 161 and 164 Cr.P.C. before the I.O. and the Court concerned, respectively, as also the evidence collected by the I.O., the charge-sheet was filed under Sections 323, 336,354kha, 504, 506, 427 and Sections 7/8 Act of 2012.
8. Upon filing of the charge-sheet, the Court concerned took cognizance on the charge-sheet on 05.11.2019.
9. From the record available, it is also apparent that before the trial Court, the statements of the P.W.1/informant, P.W.2/victim, P.W.3/Shalini Tiwari, P.W.4/Kallu Patwa, P.W.5/S.I. Pawan Kumar and P.W.6/Dr. Ram Sajewan have already been recorded.
10. It also appears from the record that on 14.11.2022, the statement of the accused/applicants have been recorded in terms of Section 313 Cr.P.C..
11. Record available also indicates that the defense also produced witnesses namely Ramashankar,/D.W.1, Sharad Kumar Singh/D.W.2, Acchelal/D.W.3, Subash Kumar/D.W.4 and Dheerendra Yadav/D.W.5. All these witnesses of the defense have also been examined.
12. It further reflects from the record that the matter was fixed on 11.03.2024 for arguments, however, the arguments could not be concluded and the case was adjourned to 24.08.2024.
13. On 24.08.2024, the defense preferred an application under Section 348 B.N.S.S. for summoning the witnesses named in charge-sheet at Serial No. 5 and 11 namely Ram Shiromani S/o Ram Achhebar and Ajit Mishra S/o Chintamani, respectively.
14. The trial Court, upon due consideration of the facts of the case vide order dated 28.08.2024, rejected the application for summoning of the witnesses named above for further examination. The relevant para of the order dated 28.08.2024 is extracted herein-under:
“???????? ?? ?????? ?? ????? ???? ?? ?? ???????? ??? ??? ?????? 02.04.2024 ?? ?????????? ???????? ??????, ???? ?????? ??? ???? ?????? ?? ??????? ????-354-?, 323, 363, 427, 504, 506 ?????? ???? ?????? ? ????- 7/8 ?????? ???? ?? ???????? ???? ?????? ???? ??? ??? ??????? ?? ?? ?? ?????? ?? ??? ??? ?????????-1 ????????? ?????? ?????????-2 ???????, ????????-3 ?????? ??????, ????????-4 ????? ????, ????????-5 ??? ??? ??? ????? ??? ??? ????????-6 ?????? ??? ????? ?? ???????? ????? ???? ????????? ?????????? ?? ??? ???????? ????-313 ???? ????????? ?????? ?????? 14.11.2022 ?? ????? ???? ???? ???? ???? ?? ?? ?? ???? ??????? ?? ??? ??? ?????????-1 ???????, ?????????-2 ??? ????? ????, ?????????-3 ????????, ?????????-4 ????? ????? ??? ?????????-5 ????????? ???? ?? ???????? ????? ???? ????????? ???? ???? ?? ?? ?? ???? ??? ?????? ???????? ???? ???? ???? ?? ???? ???????? ?????? 11.03.2024 ?? ??? ???? ???? ?? ???? ???????? ??????? ??? ???? ???? ?? ??? ??? ???? ???????????? ??? ?????????? ?? ?? ?? ???????? ????????? ???? ????? ?????? ?? ?????? ???? ?? ???????? ?? ???? ??? ??? ??? ?? ???? ?? ????????? ???? ??????? ???? ???? ????? ???? ???”
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15. In the aforesaid background of the case, present application has been filed.
16. Challenging the order dated 28.08.2024, learned counsel for the applicant says that as per settled principle of law the application ought to have been allowed by the trial Court and the order impugned is against the principle settled in this regard as also the observations made by the Hon’ble Apex Court in regard to expression ‘Fair Trial’. As such, interference of this Court is required in the matter.
17. Learned AGA opposed the present application which relates to summoning of witnesses in exercise of power conferred under Section 311 Cr.P.C.. Prayer is to affirm the impugned order and dismiss the application.
18. Considered the submissions advanced by the learned counsel for the parties and perused the record.
19. Considered the aforesaid facts and the observations made by the trial Court in the order dated 28.08.2024 and the principles related to Section 311 Cr.P.C., similar to Section 348 B.N.S.S. settled by the Hon’ble Apex Court in the case(s) of Mohd. Khalid Versus State of West Bengal (2002) 7 SCC 334; Natasha Singh vs. CBI, (2013) 5 SCC 741 : (2013) 4 SCC (Cri) 828 : 2013 SCC OnLine SC 444; State (NCT of Delhi) Vs. Shiv Kumar Yadav and Another, (2016) 2 SCC 402; State of Haryana vs. Ram Mehar and others (2016) 8 SCC 762; Swapan Kumar Chatterjee vs. Central Bureau of Investigation, (2019) 14 SCC 328; Varsha Garg vs. State of Madhya Pradesh and Others 2022 SCC OnLine SC 986 and as also by this Court in Ram Nayak Singh vs. State of U.P. & Another, 2022(2) ACR 1112 (LB).
20. It is well settled by catena of decisions by the Hon’ble Apex Court that the power under Section 311 Cr.P.C., nowSection 348 B.N.S.S., must be exercised with care, caution and circumspection and only for strong and valid reasons. The recall of a witness already examined should not be a matter of course and discretion given to the court in this regard has to be exercised judicially to prevent failure of justice. The object of provision as a whole is to do justice not only from point of view of the accused and the prosecution but also from point of view of an orderly society.
21. The Court is fully conscious of the position that after all the trial is basically for the prisoners/accused and the Court should afford an opportunity to them in the fairest manner possible. At the same time, 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. Recalling of witnesses has to be applied on the basis of judicially established and accepted principles.
22. In the facts of the case it would be apt to refer the observations made in the judgment(s) passed in the case of Mohd. Khalid (Supra) and Ram Mehar (Supra).
23. In the case of Mohd. Khalid (Supra), the Hon’ble Apex Court observed as under:-
“Before parting with the case, we may point out that the Designated Court deferred the cross-examination of the witnesses for a long time. That is a feature which is being noticed in many cases. Unnecessary adjournments give a scope for a grievance that the accused persons get a time to get over the witnesses. Whatever be the truth in this allegation, the fact remains that such adjournments lack the spirit of Section 309 of the Code. When a witness is available and his examination-in- chief is over, unless compelling reasons arc there, the Trial Court should not adjourn the matter on the mere asking. These aspects were highlighted by this Court in State of U.P. v. Shambhu Nath Singh and others (2001) 4 SCC 667 and N.G. Dastane v. Shrikant Shivde (2001) 6 SCC 135. In the case of State of U.P. v. Shambhu Nath Singh and others (2001) 4 SCC 667, this Court deprecated the practice of Courts adjourning cases without examination of witnesses when they are in attendance with the following observations:-
“9. We make it abundantly clear that if a witness is present in Court he must be examined on that day. The Court must know that most of the witnesses could attend the Court only at heavy cost to them, after keeping aside their own avocation. Certainly they incur suffering and loss of income. The meagre amount of bhatta (allowance) which a witness may be paid by the Court is generally a poor solace for the financial loss incurred by him. It is a said plight in the Trial Courts that witnesses who are called through summons or other processes stand at a doorstep from morning till evening only to be told at the end of the day that the case is adjourned to another day. This primitive practice must be reformed by every one provided the presiding officer concerned has a commitment towards duty. No sadistic pleasure, in seeing how other persons summoned by him as witnesses are standard on account of the dimension of his judicial powers, can be a persuading factor for granting such adjournments lavishly, that too in a casual manner.”
24. In the case of Ram Mehar (Supra), the Hon’ble Apex Court observed as under:-
“23. In Bablu Kumar and others v. State of Bihar and another, (2015) 8 SCC 787 the Court referred to the authorities in Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC, Rattiram and others v. State of Madhya Pradesh (2012) 4 SCC 516, J. Jayalalithaa and others v. State of Karnataka and others (2014) 2 SCC 401, State of Karnataka v. K. Yarappa Reddy (1999) 8 SCC 715 and other decisions and came to hold that keeping in view the concept of fair trial, the obligation of the prosecution, the interest of the community and the duty of the court, it can irrefragably be stated that the court cannot be a silent spectator or a mute observer when it presides over a trial. It is the duty of the court to see that neither the prosecution nor the accused play truancy with the criminal trial or corrode the sanctity of the proceeding. They cannot expropriate or hijack the community interest by conducting themselves in such a manner as a consequence of which the trial becomes a farcical one. It has been further stated that the law does not countenance a “mock trial”. It is a serious concern of society. Every member of the collective has an inherent interest in such a trial. No one can be allowed to create a dent in the same. The court is duty-bound to see that neither the prosecution nor the defence takes unnecessary adjournments and take the trial under their control. We may note with profit though the context was different, yet the message is writ large. The message is – all kinds of individual notions of fair trial have no room”.”
“38. At this juncture, we think it apt to state that the exercise of power under Section 311 Cr.P.C. can be sought to be invoked either by the prosecution or by the accused persons or by the Court itself. The High Court has been moved by the ground that the accused persons are in the custody and the concept of speedy trial is not nullified and no prejudice is caused, and, therefore, the principle of magnanimity should apply. Suffice it to say, a criminal trial does not singularly centres around the accused. In it there is involvement of the prosecution, the victim and the victim represents the collective. The cry of the collective may not be uttered in decibels which is physically audible in the court premises, but the Court has to remain sensitive to such silent cries and the agonies, for the society seeks justice. Therefore, a balance has to be struck. We have already explained the use of the words “magnanimous approach” and how it should be understood. Regard being had to the concept of balance, and weighing the factual score on the scale of balance, we are of the convinced opinion that the High Court has fallen into absolute error in axing the order passed by the learned trial Judge. If we allow ourselves to say, when the concept of fair trial is limitlessly stretched, having no boundaries, the orders like the present one may fall in the arena of sanctuary of errors. Hence, we reiterate the necessity of doctrine of balance”.
25. In the case of Shiv Kumar Yadav (Supra), the application under Section 311 Cr.P.C. was filed before the trial Court by the defense after recording the statements of the accused in terms of Section 313 Cr.P.C. and the same was rejected by the trial Court and the order of the trial Court was set aside by the High Court and the order of the High Court was set aside bythe Hon’ble Apex Court.
26. Upon due consideration of aforesaid facts, indicated above, including the judgment passed in the case of Shiv Kumar Yadav (Supra), this Court does not find any illegality in the impugned order dated 28.08.2024. It is for the following reason(s):-
(i) The application under Section 348 B.N.S.S. was preferred at the fag end of the trial i.e. at the stage of final arguments.
(ii) It appears that the witnesses named in the application were not produced as defense witnesses earlier as they could not be won over and after winning these witnesses, the application was moved under Section 348 B.N.S.S. by the defense after tutoring them, which to the view of this Court cannot be permitted.
27. For the aforesaid, the instant application is hereby rejected. Cost made easy.
Order Date :- 1.10.2024/Mohit Singh/-