High Court

1. Heard Mr. Rajesh Pratap Singh, the learned counsel for applicant and the learned A.G.A. for State opposite party 1.

2. Perused the record.

3. Applicant-Mahendra Yadav, who is a named as well as charge sheeted accused and facing trial before Court below, has approached this Court by means of present application under Section 528 B.N.S.S. with the following prayer:- "It is, therefore, Most Respectfully prayed that this Hon'ble Court may graciously be pleased to allow this application under Section 528 of the B.N.S.S. and aside the order dated 06.03.2025 passed by Additional District and Sessions Judge, F.T.C. Court No.2, Azamgarh in Session Trial No.226 of 2019 arising out of Case Crime No.249 of 2018 registered at Police Station: Sidhari, District: Azamgarh under Sections 307/34, 302/34 IPC, during the pendency of this application before this Hon'ble Court. This Hon'ble Court may further be pleased to stay the effect and operation of the order dated 06.03.2025 passed by Additional District and Sessions Judge, F.T.C. Court No.2, Azamgarh in Session Trial No.226 of 2019 arising out of Case Crime No.249 of 2018 registered at Police Station: Sidhari, District: Azamgarh under Sections 307/34, 302/34 IPC, and/or may pass such other and further order or direction which this Hon'ble Court may deem fit and proper, otherwise the applicant will suffer an irreparable loss and injury."

4. At the very outset, the learned A.G.A. for State-opposite party-1 submits that initially an application dated 16.1.2025 under Section 311 Cr.P.C. (Paper No. 176 Kha) was filed by the prosecution with the prayer that since photo copies of relevant medical documents are on record, therefore, a direction be issued to produce the original documents of the same so that they can be proved in evidence. This application dated 16.1.2025, which appears to have been filed under Section 91 read with Section 311 Cr. P. C. came to be allowed by Court below, vide order dated 16.1.2025.

5. Subsequent to above order dated 16.1.2025, one Vishram Yadav Chief Pharmacist Divisional Civil District Hospital, Azamgarh appeared before Court below as C.W.-1 along with the original documents. His statement-in-chief was recorded.

6. Subsequently, an application dated 13.2.2025 (Paper No. 199 Kha) was filed by the accused before Court below that since the witness Vishram Yadav could have only produced the documents desired for, but he could not have been examined as a Court witness by virtue of the provisions contained in Section 139 of Evidence Act, therefore, his deposition recorded before Court below cannot be considered. This application filed by the accused before Court below has been rejected by Court below, vide order dated 6.3.2025.

7. Thus feeling aggrieved by the order dated 6.3.2025, applicant has now approached this Court by means of present application under Section 528 B.N.S.S. 7A. Mr. Rajesh Pratap Singh, the learned counsel for applicant submits that the order impugned in present application is manifestly illegal and in excess of jurisdiction . As such, the same is liable to b e quashed by this Court. According to the learned counsel for applicant, the deposition of Visdhram Yadav could not have been recorded as he was not summoned as a court witness. To but\tress his submission, he has referred to the provisions contained in Section 139 of the Evidence Act as well as the judgement of Supreme Court in Smt. Parmeshwari Devi Vs. The State and another, (1977) 1 SCC 169. On the above premise, he, therefore, contends that the order impugned is liable to be quashed by this Court.

8. Per contra, the learned A.G.A. has opposed the present application . He has raised the following objections qua the maintainability of present application. Learned A.G.A. has referred to the provisions contained in Section 465 Cr. P. C. and on basis thereof he submits that since the order impugned in present application does not cause a failure of justice, therefore, the same is not liable to be interfered with. It is next contended by the learned A.G.A. that subsequent to the order dated 16.01.2025, Vishram Yadav appeared before Court below as a Court witness i.e. C.W.-1. Thereafter, hi statement-in-chief was recorded. He was also cross examined on behalf of accused applicant also. It is, thereafter, that the application (paper No. 199 Kha) was filed with the prayer that since Vishram Yadav had not been summoned as a court witness, therefore, his deposition could not be recorded and therefore, cannot be considered. On the above premise, the learned A.G.A. contends that on account of the principle of estoppel by conduct, the accused applicant is now stopped from challenging the deposition of C.W.-1 Vishram Yadav. It is further submitted by the learned A.G.A. that as per the provisions contained in the Evidence Act, it is only the certified copy of a public document, which is admissible in evidence. However, photo copy of a document is not admissible in evidence, when it has to be proved in accordance with the provisions of the Evidence Act. It is on account of above that application dated 16.1.2025 was filed by the prosecution before Court below for summoning the original documents regarding the papers pertaining to the medical treatment of the injured/deceased. Since, the photo copies of the documents on record shall not become evidence of the case till it has been proved in accordance with law, therefore, no infirmity or illegality can be attached to the order dated 16.01.2025, whereby Court below had directed to produce the original documents of the same and further prove the same in accordance with law. Vishram Yadav, Chief Pharmacist, who produced the original documents before Court below relating to the medical treatment of the injured has also deposed before Court below as C.W.-1 to prove the said documents. As such, the order passed by Court below is perfectly in accordance with law. Furthermore, no prejudice can be said to be caused to the defence and therefore, the order is clearly sustainable by virtue of the provisions contained in Section 465 Cr.P.C. On the above premise, the learned A.G.A. thus submits that in the facts and circumstances of the case, the order impugned is not liable to be interfered with. As such, present application is liable to be dismissed.

9. When confronted with above, the learned counsel for applicant could not overcome the same.

10. Having heard, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and upon perusal of record, this Court finds that the objections raised by the learned A.G.A. are clearly borne out from the record and furthermore the same could not be dislodged by the learned counsel for applicant with reference to the record at this stage. In view of above, no good ground exists to entertain the present application.

11. As a result, the present application fails and is liable to be dismissed.

12. It is, accordingly, dismissed. Order Date :- 6.5.2025 HSM

1. Heard Mr. Rajesh Pratap Singh, the learned counsel for applicant and the learned A.G.A. for State opposite party 1.

2. Perused the record.

3. Applicant-Mahendra Yadav, who is a named as well as charge sheeted accused and facing trial before Court below, has approached this Court by means of present application under Section 528 B.N.S.S. with the following prayer:- "It is, therefore, Most Respectfully prayed that this Hon'ble Court may graciously be pleased to allow this application under Section 528 of the B.N.S.S. and aside the order dated 06.03.2025 passed by Additional District and Sessions Judge, F.T.C. Court No.2, Azamgarh in Session Trial No.226 of 2019 arising out of Case Crime No.249 of 2018 registered at Police Station: Sidhari, District: Azamgarh under Sections 307/34, 302/34 IPC, during the pendency of this application before this Hon'ble Court. This Hon'ble Court may further be pleased to stay the effect and operation of the order dated 06.03.2025 passed by Additional District and Sessions Judge, F.T.C. Court No.2, Azamgarh in Session Trial No.226 of 2019 arising out of Case Crime No.249 of 2018 registered at Police Station: Sidhari, District: Azamgarh under Sections 307/34, 302/34 IPC, and/or may pass such other and further order or direction which this Hon'ble Court may deem fit and proper, otherwise the applicant will suffer an irreparable loss and injury."

4. At the very outset, the learned A.G.A. for State-opposite party-1 submits that initially an application dated 16.1.2025 under Section 311 Cr.P.C. (Paper No. 176 Kha) was filed by the prosecution with the prayer that since photo copies of relevant medical documents are on record, therefore, a direction be issued to produce the original documents of the same so that they can be proved in evidence. This application dated 16.1.2025, which appears to have been filed under Section 91 read with Section 311 Cr. P. C. came to be allowed by Court below, vide order dated 16.1.2025.

5. Subsequent to above order dated 16.1.2025, one Vishram Yadav Chief Pharmacist Divisional Civil District Hospital, Azamgarh appeared before Court below as C.W.-1 along with the original documents. His statement-in-chief was recorded.

6. Subsequently, an application dated 13.2.2025 (Paper No. 199 Kha) was filed by the accused before Court below that since the witness Vishram Yadav could have only produced the documents desired for, but he could not have been examined as a Court witness by virtue of the provisions contained in Section 139 of Evidence Act, therefore, his deposition recorded before Court below cannot be considered. This application filed by the accused before Court below has been rejected by Court below, vide order dated 6.3.2025.

7. Thus feeling aggrieved by the order dated 6.3.2025, applicant has now approached this Court by means of present application under Section 528 B.N.S.S. 7A. Mr. Rajesh Pratap Singh, the learned counsel for applicant submits that the order impugned in present application is manifestly illegal and in excess of jurisdiction . As such, the same is liable to b e quashed by this Court. According to the learned counsel for applicant, the deposition of Visdhram Yadav could not have been recorded as he was not summoned as a court witness. To but\tress his submission, he has referred to the provisions contained in Section 139 of the Evidence Act as well as the judgement of Supreme Court in Smt. Parmeshwari Devi Vs. The State and another, (1977) 1 SCC 169. On the above premise, he, therefore, contends that the order impugned is liable to be quashed by this Court.

8. Per contra, the learned A.G.A. has opposed the present application . He has raised the following objections qua the maintainability of present application. Learned A.G.A. has referred to the provisions contained in Section 465 Cr. P. C. and on basis thereof he submits that since the order impugned in present application does not cause a failure of justice, therefore, the same is not liable to be interfered with. It is next contended by the learned A.G.A. that subsequent to the order dated 16.01.2025, Vishram Yadav appeared before Court below as a Court witness i.e. C.W.-1. Thereafter, hi statement-in-chief was recorded. He was also cross examined on behalf of accused applicant also. It is, thereafter, that the application (paper No. 199 Kha) was filed with the prayer that since Vishram Yadav had not been summoned as a court witness, therefore, his deposition could not be recorded and therefore, cannot be considered. On the above premise, the learned A.G.A. contends that on account of the principle of estoppel by conduct, the accused applicant is now stopped from challenging the deposition of C.W.-1 Vishram Yadav. It is further submitted by the learned A.G.A. that as per the provisions contained in the Evidence Act, it is only the certified copy of a public document, which is admissible in evidence. However, photo copy of a document is not admissible in evidence, when it has to be proved in accordance with the provisions of the Evidence Act. It is on account of above that application dated 16.1.2025 was filed by the prosecution before Court below for summoning the original documents regarding the papers pertaining to the medical treatment of the injured/deceased. Since, the photo copies of the documents on record shall not become evidence of the case till it has been proved in accordance with law, therefore, no infirmity or illegality can be attached to the order dated 16.01.2025, whereby Court below had directed to produce the original documents of the same and further prove the same in accordance with law. Vishram Yadav, Chief Pharmacist, who produced the original documents before Court below relating to the medical treatment of the injured has also deposed before Court below as C.W.-1 to prove the said documents. As such, the order passed by Court below is perfectly in accordance with law. Furthermore, no prejudice can be said to be caused to the defence and therefore, the order is clearly sustainable by virtue of the provisions contained in Section 465 Cr.P.C. On the above premise, the learned A.G.A. thus submits that in the facts and circumstances of the case, the order impugned is not liable to be interfered with. As such, present application is liable to be dismissed.

9. When confronted with above, the learned counsel for applicant could not overcome the same.

10. Having heard, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and upon perusal of record, this Court finds that the objections raised by the learned A.G.A. are clearly borne out from the record and furthermore the same could not be dislodged by the learned counsel for applicant with reference to the record at this stage. In view of above, no good ground exists to entertain the present application.

11. As a result, the present application fails and is liable to be dismissed.

12. It is, accordingly, dismissed. Order Date :- 6.5.2025 HSM