High Court · 2025

1. Heard Mr. Ashok Kumar Mishra, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and Mr. Rajesh Kumar, the learned counsel representing first informant opposite party-2.

2. Perused the record.

3. Applicant-Raj Kumar Mishra, who is first informant, has approached this Court by means of present application under Section 528 BNSS with the following prayer:- "It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to quash the order dated 22.01.2025 passed by Additional Session Judge, Court No. 01, Varanasi in Session Trial No. 197 of 2013, State Vs. Rahul, under section 302, IPC, Police Station: Cantt, District: Varanasi whereby rejected the application being 92-B filed by the applicant and recorded the statement under section 313 of Cr.P.C. and fixed the date 29.01.2025 for defense to the opposite party no. 2 arising out of Case Crime No. 308 of 2011. It is further be pleased to direct the trial court to call the formal witnesses of Session Trial No. 197 of 2013, State Vs. Rahul, and record their examination-in-chief as well as cross-examination for just decision of the case, and/or pass any other and further order as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."

4. Learned counsel for applicant submits that order impugned in present application is manifestly illegal and therefore, liable to be set aside by this Court. Court below by means of the impugned order has closed the right of the prosecution to examine any other person in place of Investigating Officer who has reportedly died. With reference to the material on record, the learned counsel for applicant submits that the investigation conducted by the Investigating Officer/documents prepared by the Investigating Officer during course of investigation and relied upon by the prosecution shall not stand proved, in the absence of the same having been proved by the prosecution. He, therefore, submits that adducing another person who recognize the handwriting of the Investigating Officer or had worked with him at the concerned police station at the place of pointing of Investigating Officer who has already died is crucial for the trial pending against accused opposite party-2. It is thus contended that Court below ought to have taken initiative to find out the name of the persons who could appear before Court below as Court witness to prove the documents prepared by the erstwhile Investigating Officer as well as the investigation conducted by him and relied upon by the prosecution. Court below has thus passed the order impugned not in diligent exercise of jurisdiction but in a casual and cavalier fashion and therefore, the same is liable to be quashed by this Court.

5. Per contra, the learned A.G.A. for State-opposite party-1 has not opposed the present application. He submits that since the trial before Court below is eventually the trial of an accused therefore, such a trial should be a free and fair trial. Court is not powerless to pass such order which may further the cause of justice. Court below has not dealt with the matter diligently but on the stereotype finding that inspite of repeated opportunity having been granted, no attempt has been made by the prosecution to adduce secondary evidence closed the opportunity of prosecution to lead secondary evidence. Therefore, right of the prosecution to lead secondary evidence to prove the documents prepared by the Investigating Officer during the course of investigation has been taken away which cannot be said to be justified. He, therefore, submits that in view of above, he cannot have any objection in case, the present application is allowed.

6. On the other hand, Mr. Rajesh Kumar, the learned counsel representing first informant opposite party-2 has vehemently opposed the present application. He submits that perusal of the order impugned will go to show that repeated opportunity was granted by Court below to the prosecution to adduce secondary evidence in place of Investigating Officer who admittedly has died. However, inspite of sufficient opportunity having been granted by Court below prosecution failed to produce any such witness who could proved the handwriting of the Investigating Officer who had investigated the concerned case crime number and in turn prove the documents prepared by him during the course of investigation and relied upon by the prosecution in the trial. He, therefore, submits that in view of above, no interference is warranted by this Court in present application.

7. Having heard the learned counsel for applicant, the learned A.G.A. for State-opposite party-1, the learned counsel representing first informant/opposite party-2 and upon perusal of record, this Court finds that it is an admitted fact that during pendency of trial, the Investigating Officer PW-19 died. Therefore, the investigation conducted by the Investigating Officer as well as the documents prepared by him during the course of investigation and relied upon by the prosecution can be proved by secondary evidence. Since, secondary evidence can be of an employee who admittedly is a Government Servant Employee, therefore, it is not easy for the prosecution to adduce such witness. In view of above the Court itself could have sought information regarding above and thereafter summon the concerned personnel as a Court witness and get his depositions recorded. This discretion has not been exercised by Court below in favour of prosecution. Therefore, it cannot be said that the trial of the accused before Court below is a free and fair trial and the order impugned is a step forward to unearth the truth.

8. In view of the discussion made above, the present application succeeds and is liable to be allowed.

9. It is, accordingly, allowed.

10. The order impugned dated 22.01.2025 passed by Additional Sessions Judge, Court No. 01, Varanasi in Session Trial No. 197 of 2013 (State Vs. Rahul) under section 302, IPC, Police Station: Cantt, District: Varanasi (Annexure-1 to the affidavit filed in support of present application) shall stand quashed.

11. Prosecution shall disclose the name of the personnel (Government Servant) who recognizes the handwriting of the erstwhile Investigating Officer within a period of one month from today. In case, such an application is filed by the prosecution before Court below, then Court below shall proceed to summon the said personnel as Court witness to prove the handwriting of the Investigating Officer and also the documents prepared by him during the course of investigation and relied upon by the prosecution. IMTIYAZ AHMAD High Court of Judicature at Allahabad Order Date :- 14.5.2025/Imtiyaz

1. Heard Mr. Ashok Kumar Mishra, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and Mr. Rajesh Kumar, the learned counsel representing first informant opposite party-2.

2. Perused the record.

3. Applicant-Raj Kumar Mishra, who is first informant, has approached this Court by means of present application under Section 528 BNSS with the following prayer:- "It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to quash the order dated 22.01.2025 passed by Additional Session Judge, Court No. 01, Varanasi in Session Trial No. 197 of 2013, State Vs. Rahul, under section 302, IPC, Police Station: Cantt, District: Varanasi whereby rejected the application being 92-B filed by the applicant and recorded the statement under section 313 of Cr.P.C. and fixed the date 29.01.2025 for defense to the opposite party no. 2 arising out of Case Crime No. 308 of 2011. It is further be pleased to direct the trial court to call the formal witnesses of Session Trial No. 197 of 2013, State Vs. Rahul, and record their examination-in-chief as well as cross-examination for just decision of the case, and/or pass any other and further order as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."

4. Learned counsel for applicant submits that order impugned in present application is manifestly illegal and therefore, liable to be set aside by this Court. Court below by means of the impugned order has closed the right of the prosecution to examine any other person in place of Investigating Officer who has reportedly died. With reference to the material on record, the learned counsel for applicant submits that the investigation conducted by the Investigating Officer/documents prepared by the Investigating Officer during course of investigation and relied upon by the prosecution shall not stand proved, in the absence of the same having been proved by the prosecution. He, therefore, submits that adducing another person who recognize the handwriting of the Investigating Officer or had worked with him at the concerned police station at the place of pointing of Investigating Officer who has already died is crucial for the trial pending against accused opposite party-2. It is thus contended that Court below ought to have taken initiative to find out the name of the persons who could appear before Court below as Court witness to prove the documents prepared by the erstwhile Investigating Officer as well as the investigation conducted by him and relied upon by the prosecution. Court below has thus passed the order impugned not in diligent exercise of jurisdiction but in a casual and cavalier fashion and therefore, the same is liable to be quashed by this Court.

5. Per contra, the learned A.G.A. for State-opposite party-1 has not opposed the present application. He submits that since the trial before Court below is eventually the trial of an accused therefore, such a trial should be a free and fair trial. Court is not powerless to pass such order which may further the cause of justice. Court below has not dealt with the matter diligently but on the stereotype finding that inspite of repeated opportunity having been granted, no attempt has been made by the prosecution to adduce secondary evidence closed the opportunity of prosecution to lead secondary evidence. Therefore, right of the prosecution to lead secondary evidence to prove the documents prepared by the Investigating Officer during the course of investigation has been taken away which cannot be said to be justified. He, therefore, submits that in view of above, he cannot have any objection in case, the present application is allowed.

6. On the other hand, Mr. Rajesh Kumar, the learned counsel representing first informant opposite party-2 has vehemently opposed the present application. He submits that perusal of the order impugned will go to show that repeated opportunity was granted by Court below to the prosecution to adduce secondary evidence in place of Investigating Officer who admittedly has died. However, inspite of sufficient opportunity having been granted by Court below prosecution failed to produce any such witness who could proved the handwriting of the Investigating Officer who had investigated the concerned case crime number and in turn prove the documents prepared by him during the course of investigation and relied upon by the prosecution in the trial. He, therefore, submits that in view of above, no interference is warranted by this Court in present application.

7. Having heard the learned counsel for applicant, the learned A.G.A. for State-opposite party-1, the learned counsel representing first informant/opposite party-2 and upon perusal of record, this Court finds that it is an admitted fact that during pendency of trial, the Investigating Officer PW-19 died. Therefore, the investigation conducted by the Investigating Officer as well as the documents prepared by him during the course of investigation and relied upon by the prosecution can be proved by secondary evidence. Since, secondary evidence can be of an employee who admittedly is a Government Servant Employee, therefore, it is not easy for the prosecution to adduce such witness. In view of above the Court itself could have sought information regarding above and thereafter summon the concerned personnel as a Court witness and get his depositions recorded. This discretion has not been exercised by Court below in favour of prosecution. Therefore, it cannot be said that the trial of the accused before Court below is a free and fair trial and the order impugned is a step forward to unearth the truth.

8. In view of the discussion made above, the present application succeeds and is liable to be allowed.

9. It is, accordingly, allowed.

10. The order impugned dated 22.01.2025 passed by Additional Sessions Judge, Court No. 01, Varanasi in Session Trial No. 197 of 2013 (State Vs. Rahul) under section 302, IPC, Police Station: Cantt, District: Varanasi (Annexure-1 to the affidavit filed in support of present application) shall stand quashed.

11. Prosecution shall disclose the name of the personnel (Government Servant) who recognizes the handwriting of the erstwhile Investigating Officer within a period of one month from today. In case, such an application is filed by the prosecution before Court below, then Court below shall proceed to summon the said personnel as Court witness to prove the handwriting of the Investigating Officer and also the documents prepared by him during the course of investigation and relied upon by the prosecution. IMTIYAZ AHMAD High Court of Judicature at Allahabad Order Date :- 14.5.2025/Imtiyaz