Durgesh Tiwari v. State of U.P. and another) as well as order dated

Hon'ble Saurabh Srivastava,J.

1. Heard Sri Subhash Chandra Yadav, learned counsel for petitioner and learned AGA for the State.

2. The present petition has been preferred for challenging order dated 11.12.2024 passed by learned Sessions Judge, Azamgarh in Criminal Revision No.154 of 2022 (Durgesh Tiwari Vs. State of U.P. and another) as well as order dated 21.06.2022 passed by learned Chief Judicial Magistrate, Azamgarh in Case No.5803 of 2005 (State Vs. Brijpati Tiwari and others), arising out of Case Crime No.482 of 2003, under Sections 323, 325, 504 IPC, P.S. Sidhari, District Azamgarh.

3. Brief facts of the present case are that in Case No.5803 of 2005, three persons were made accused including the petitioner, namely, Durgesh Tiwari, Kamlesh Pandey and Brijpati Tiwari. In the year 2004, one accused, namely, Brijpati Tiwari was died and when the said information was brought before the learned trial court concerned, criminal proceedings against the said accused, was abated but the learned trial court concerned framed charges against Kamlesh Pandey and Brijpati Tiwari (dead) vide order dated 07.05.2018 excluding the petitioner, whereas petitioner was present in the court concerned on that date. At the stage of cross- examination of P.W.-2, an application was preferred at the behest of accused persons on dated 09.05.2018 that charges have been framed against a dead person, whereupon, learned court concerned amended the charge vide order dated 21.06.2022 by way of substituting the name of petitioner in place of Brijpati Tiwari. Being aggrieved with the said order, petitioner preferred Criminal Revision No.154 of 2022 which was dismissed vide order dated 11.12.2024 which impugned the present petition.

4. Learned counsel for petitioner submitted that charges have been altered only to the tune of replacing the dead person with the petitioner on dated 21.06.2022 without recalling the prosecution witnesses again in respect of altered name of accused against whom charges have been framed, since the matter was listed for cross-examination of P.W.-2. Learned counsel for petitioner further submitted that once the charge is altered, prosecution witnesses have to be recalled in respect of altered charges as per the provisions mentioned in Section 217 Cr.P.C. and as such, impugned orders may be liable to be set aside.

5. Although, learned AGA opposed the prayer as sought through the instant petition but did not rebut the stand taken up by learned counsel for petitioner in pursuance of Section 217 Cr.P.C.

6. After having detailed arguments as extended by learned counsel for petitioner as well as by bare perusal of material available on records, it is undisputed that charges have been framed against petitioner vide order dated 21.06.2022 in Case No.5803 of 2005 replacing a dead person which was challenged by way of filing criminal revision and while adjudicating the same, learned revisional court mentioned in its order dated 11.12.2024 by way of admitting it a technical/typographical error through which charges have already been framed against a dead person, but at the time of framing charge, petitioner was altogether available before the concerned court. It is also apparent from the order dated 11.12.2024 the learned revisional court disclosed the fact that P.W.-1 has already been cross-examined by petitioner at the behest of charged accused who was already expired and as such, the specific crime if committed by an accused against whom charges have been framed, it is that very accused who is entitled to cross- examine as per the mandate of law but learned trial court after framing the charges against petitioner, proceeded in continuity to the trial which was carrying against a dead person being an accused and in place of that dead person, name of petitioner was replaced vide order dated 21.06.2022.

7. Although, trial is pending since 2005 and after lapse of near about 20 years, typographical error has been surfaced and brought to the notice of the court which is reflecting a casual approach adopted by learned court concerned.

8. Learned District Judge, Azamgarh is hereby directed to take note of the same by way of seeking explanation from the concerned Judicial Officer who was holding the charge of Chief Judicial Magistrate, Azamgarh during that period and compliance of this direction be apprised to this Court through Registrar (Compliance) within 30 days from today. This proceedings shall not be treated as part of the instant petition and the same is hereby directed to endorse and register as separate proceedings being the departmental one.

9. Process of issuing notice to respondent no.2 is dispensed with since learned counsel for petitioner has raised legal arguments.

10. In sofar as the grievance of petitioner is concerned, it is the trite law that an accused against whom charges are framed, proper opportunity of cross-examine the prosecution witnesses will be provided to him and denial of the same, would be denial of justice to either of the parties.

11. In view of the aforementioned facts and circumstances, order dated 21.06.2022 passed by learned Chief Judicial Magistrate, Azamgarh in Case No.5803 of 2005 and order dated 11.12.2024 passed by learned Sessions Judge, Azamgarh in Criminal Revision No.154 of 2022, are hereby set aside only to the extent by way of proceedings afresh, petitioner will be treated as an accused against whom charges have been framed and the prosecution witnesses who have already been examined, be re-examined again by way of providing opportunity to the petitioner for cross-examination.

12. The aforesaid exercise in shape of re-examination of witnesses shall be initiated to be completed within a period of two months from the date of production of a certified copy of this order before learned trial court concerned.

13. Accordingly, the instant petition stands allowed in part.

14. Registrar (Compliance) is directed to ensure service of this order upon learned District Judge, Azamgarh within a week for compliance of paragraph 8 of this order. Order Date :- 27.2.2025 Vivek Kr. VIVEK KUMAR High Court of Judicature at Allahabad

Hon'ble Saurabh Srivastava,J.

1. Heard Sri Subhash Chandra Yadav, learned counsel for petitioner and learned AGA for the State.

2. The present petition has been preferred for challenging order dated 11.12.2024 passed by learned Sessions Judge, Azamgarh in Criminal Revision No.154 of 2022 (Durgesh Tiwari Vs. State of U.P. and another) as well as order dated 21.06.2022 passed by learned Chief Judicial Magistrate, Azamgarh in Case No.5803 of 2005 (State Vs. Brijpati Tiwari and others), arising out of Case Crime No.482 of 2003, under Sections 323, 325, 504 IPC, P.S. Sidhari, District Azamgarh.

3. Brief facts of the present case are that in Case No.5803 of 2005, three persons were made accused including the petitioner, namely, Durgesh Tiwari, Kamlesh Pandey and Brijpati Tiwari. In the year 2004, one accused, namely, Brijpati Tiwari was died and when the said information was brought before the learned trial court concerned, criminal proceedings against the said accused, was abated but the learned trial court concerned framed charges against Kamlesh Pandey and Brijpati Tiwari (dead) vide order dated 07.05.2018 excluding the petitioner, whereas petitioner was present in the court concerned on that date. At the stage of cross- examination of P.W.-2, an application was preferred at the behest of accused persons on dated 09.05.2018 that charges have been framed against a dead person, whereupon, learned court concerned amended the charge vide order dated 21.06.2022 by way of substituting the name of petitioner in place of Brijpati Tiwari. Being aggrieved with the said order, petitioner preferred Criminal Revision No.154 of 2022 which was dismissed vide order dated 11.12.2024 which impugned the present petition.

4. Learned counsel for petitioner submitted that charges have been altered only to the tune of replacing the dead person with the petitioner on dated 21.06.2022 without recalling the prosecution witnesses again in respect of altered name of accused against whom charges have been framed, since the matter was listed for cross-examination of P.W.-2. Learned counsel for petitioner further submitted that once the charge is altered, prosecution witnesses have to be recalled in respect of altered charges as per the provisions mentioned in Section 217 Cr.P.C. and as such, impugned orders may be liable to be set aside.

5. Although, learned AGA opposed the prayer as sought through the instant petition but did not rebut the stand taken up by learned counsel for petitioner in pursuance of Section 217 Cr.P.C.

6. After having detailed arguments as extended by learned counsel for petitioner as well as by bare perusal of material available on records, it is undisputed that charges have been framed against petitioner vide order dated 21.06.2022 in Case No.5803 of 2005 replacing a dead person which was challenged by way of filing criminal revision and while adjudicating the same, learned revisional court mentioned in its order dated 11.12.2024 by way of admitting it a technical/typographical error through which charges have already been framed against a dead person, but at the time of framing charge, petitioner was altogether available before the concerned court. It is also apparent from the order dated 11.12.2024 the learned revisional court disclosed the fact that P.W.-1 has already been cross-examined by petitioner at the behest of charged accused who was already expired and as such, the specific crime if committed by an accused against whom charges have been framed, it is that very accused who is entitled to cross- examine as per the mandate of law but learned trial court after framing the charges against petitioner, proceeded in continuity to the trial which was carrying against a dead person being an accused and in place of that dead person, name of petitioner was replaced vide order dated 21.06.2022.

7. Although, trial is pending since 2005 and after lapse of near about 20 years, typographical error has been surfaced and brought to the notice of the court which is reflecting a casual approach adopted by learned court concerned.

8. Learned District Judge, Azamgarh is hereby directed to take note of the same by way of seeking explanation from the concerned Judicial Officer who was holding the charge of Chief Judicial Magistrate, Azamgarh during that period and compliance of this direction be apprised to this Court through Registrar (Compliance) within 30 days from today. This proceedings shall not be treated as part of the instant petition and the same is hereby directed to endorse and register as separate proceedings being the departmental one.

9. Process of issuing notice to respondent no.2 is dispensed with since learned counsel for petitioner has raised legal arguments.

10. In sofar as the grievance of petitioner is concerned, it is the trite law that an accused against whom charges are framed, proper opportunity of cross-examine the prosecution witnesses will be provided to him and denial of the same, would be denial of justice to either of the parties.

11. In view of the aforementioned facts and circumstances, order dated 21.06.2022 passed by learned Chief Judicial Magistrate, Azamgarh in Case No.5803 of 2005 and order dated 11.12.2024 passed by learned Sessions Judge, Azamgarh in Criminal Revision No.154 of 2022, are hereby set aside only to the extent by way of proceedings afresh, petitioner will be treated as an accused against whom charges have been framed and the prosecution witnesses who have already been examined, be re-examined again by way of providing opportunity to the petitioner for cross-examination.

12. The aforesaid exercise in shape of re-examination of witnesses shall be initiated to be completed within a period of two months from the date of production of a certified copy of this order before learned trial court concerned.

13. Accordingly, the instant petition stands allowed in part.

14. Registrar (Compliance) is directed to ensure service of this order upon learned District Judge, Azamgarh within a week for compliance of paragraph 8 of this order. Order Date :- 27.2.2025 Vivek Kr. VIVEK KUMAR High Court of Judicature at Allahabad