Referring to the judgement of Supreme Court in Raja Ram Prasad Yadav v. State of Bihar and Another

Applicant :- Digambar Singh Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Ravi Pandey Counsel for Opposite Party :- G.A.,Omar Zamin,Sudhanshu Srivastava Hon'ble Rajeev Misra,J. Heard Mr. Ravi Pandey, the learned counsel for applicant, the learned A.G.A. for State opposite party 1 and Mr. Omar Zamin, the learned counsel representing first informan opposite party 2 and the victim opposite party 3 Firdos. Applicant Digambar Singh, 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 and to quash the impugned order dated 03.03.2025 passed by the learned Additional District and Sessions Judge, Court No. 14, Aligarh on disposal of application 8Ka moved by the O.P. No.3 for recording of her statement in Case No. 1063 of 2022 (State VS. Dalveer & Others) arising out of Case Crime No. 161 of 2021 under Section 323, 147, 302 I.P.C., Police Station Roravar, District Aligarh pending in the court of learned Additional Sessions Judge, Court No. 14, Aligarh. And it is further prayed to this Hon'ble Court to stay the impugned order dated 03.03.2025 passed by the learned Additional District and Sessions Judge, Court No. 14, Aligarh on disposal of application 8Ka moved by the O.P. No.3 for recording of her statement in Case No. 1063 of 2022 (State VS. Dalveer & Others) arising out of Case Crime No. 161 of 2021 under Section 323, 147, 302 I.P.C., Police Station Roravar, District Aligarh pending in the court of learned Additional Sessions Judge, Court No. 14, Aligarh, during the pendency of the application before this Hon'ble Court, otherwise applicants will suffer irreparable loss and injury. And/or to pass such other and further order which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case." Record shows that during pendency of aforementioned Sessions Trial an application dated 17.52.2024 under Section 311 Cr. P. C. was filed by opposite party 3 with the prayer that her statement be recorded as she is an eyewitness of the occurrence giving rise to aforementioned Sessions Trial. This application came to be allowed by Court below by means of order dated 3.3.2025. Thus feeling aggrieved by the above order dated 3.3.2025 applicant, who is a named and charge sheeted accused and also facing trial before court below, has approached this Court by means of present application under Section 528 B.N.S.S. Learned counsel for applicant submits that the order impugned dated 3.3.2025 passed by Court below is manifestly illegal and therefore liable to be set aside by this Court. With the aid of the material on record, the learned counsel for applicant submits that the statement of opposite party 3 was never recorded by the Investigating Officer under Section 161 Cr. P. C. nor it was discovered during the course of investigation that she is an eye witness of the occurrence. The prosecution witnesses, who have deposed before Court below upto this stage, have also not mentioned that the occurrence in question was witnessed by P.W. 3. On the above premise, the learned counsel for applicant submits that there is no basis for filing the application under Section 311 Cr. P. C. by the victim/opposite party3. Referring to the judgement of Supreme Court in Raja Ram Prasad Yadav Vs. State of Bihar and Another (2013) 14 SCC 461, the learned counsel for applicant submits that when the bona fide of applicant in filing the aforementioned application under Section 311 Cr. P. C. is examined in the light of parameters laid down by Apex Court in aforementioned judgement, it cannot be said that the said application was filed bona fidely. He, therefore, submits that in view of above, Court below has committed a jurisdictional error in passing the order impugned. Consequently, the same is liable to be set aside by this Court. Per contra, the learned A.G.A. representing State opposite party 1 and Mr. Omar Zamin, the learned counsel representing opposite parties 2 and 3 have vehemently opposed the present application. They have invited the attention of the Court to the judgement of the Supreme Court in Varsha Garg v. State of M.P., 2022 SCC OnLine SC 986, wherein Apex Court has held that Section 311 Cr.P.C. now corresponding to Section 348 BNSS is an enabling provision, which enables the Court to find out the truth, which also is the ultimate object of the trial. Since the trial before Court is trial of an accused, therefore, such a trial should be a free and fair trial On account of above, the Code i.e. Cr. P. C. does not provide any time limit for filing an application under Section 311 Cr. P. C. nor an application under Section 311 Cr. P. C. can be rejected on the ground of delay, The only rider attached to the provisions contained in Section 311 Cr. P. C. is that such an application can be filed at any time but before the delivery of judgement.Firdos opposite party 3 falls in the category of victim, as she is the widow of the deceased. She alleges herself to be an eyewitness of the occurrence, therefore, Court below has exercised it's discretion in favour of prosecution. This exercise of discretion by Court below can neither be said to be illegal, unjust, arbitrary or perverse. No pleading has been raised in the affidavit filed in support of present application regarding the prejudice, if any, caused to the applicant, therefore by virtue of the provisions contained in Section 465 Cr. P. C., as the order impugned has been passed by Court below in the interest of justice, therefore, no interference is warranted by this Court in present application. It is lastly contended by the learned A.G.A. and the learned counsel representing opposite parties 2 and 3 that defence cannot guide and govern the quality and quantity of evidence which the prosecution wants to lead in support of the prosecution case. Further, it cannot be said that the application under Section 311 Cr. P. C. was engineered to fill in the lacunae in evidence. On the edifice of aforesaid submission, it is thus urged that no question of law and fact has emerged for consideration by this Court in present application. As such present application is liable to be dismissed. When confronted with above, the learned counsel for applicant could not overcome the same. 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 the victim opposite party 3, this Court finds that the objection raised by the learned A.G.A. for State and the learned counsel representing opposite parties 2 and 3 are not only borne out from the record, but furthermore, the same could not be dislodged by the learned counsel for applicant. As such, no good ground exists to entertain the present application. In view of above, present application fails and is liable to be dismissed. It is, accordingly, dismissed. Order Date :- 8.5.2025 HSM HARI SHANKER MISHRA High Court of Judicature at Allahabad

Applicant :- Digambar Singh Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Ravi Pandey Counsel for Opposite Party :- G.A.,Omar Zamin,Sudhanshu Srivastava Hon'ble Rajeev Misra,J. Heard Mr. Ravi Pandey, the learned counsel for applicant, the learned A.G.A. for State opposite party 1 and Mr. Omar Zamin, the learned counsel representing first informan opposite party 2 and the victim opposite party 3 Firdos. Applicant Digambar Singh, 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 and to quash the impugned order dated 03.03.2025 passed by the learned Additional District and Sessions Judge, Court No. 14, Aligarh on disposal of application 8Ka moved by the O.P. No.3 for recording of her statement in Case No. 1063 of 2022 (State VS. Dalveer & Others) arising out of Case Crime No. 161 of 2021 under Section 323, 147, 302 I.P.C., Police Station Roravar, District Aligarh pending in the court of learned Additional Sessions Judge, Court No. 14, Aligarh. And it is further prayed to this Hon'ble Court to stay the impugned order dated 03.03.2025 passed by the learned Additional District and Sessions Judge, Court No. 14, Aligarh on disposal of application 8Ka moved by the O.P. No.3 for recording of her statement in Case No. 1063 of 2022 (State VS. Dalveer & Others) arising out of Case Crime No. 161 of 2021 under Section 323, 147, 302 I.P.C., Police Station Roravar, District Aligarh pending in the court of learned Additional Sessions Judge, Court No. 14, Aligarh, during the pendency of the application before this Hon'ble Court, otherwise applicants will suffer irreparable loss and injury. And/or to pass such other and further order which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case." Record shows that during pendency of aforementioned Sessions Trial an application dated 17.52.2024 under Section 311 Cr. P. C. was filed by opposite party 3 with the prayer that her statement be recorded as she is an eyewitness of the occurrence giving rise to aforementioned Sessions Trial. This application came to be allowed by Court below by means of order dated 3.3.2025. Thus feeling aggrieved by the above order dated 3.3.2025 applicant, who is a named and charge sheeted accused and also facing trial before court below, has approached this Court by means of present application under Section 528 B.N.S.S. Learned counsel for applicant submits that the order impugned dated 3.3.2025 passed by Court below is manifestly illegal and therefore liable to be set aside by this Court. With the aid of the material on record, the learned counsel for applicant submits that the statement of opposite party 3 was never recorded by the Investigating Officer under Section 161 Cr. P. C. nor it was discovered during the course of investigation that she is an eye witness of the occurrence. The prosecution witnesses, who have deposed before Court below upto this stage, have also not mentioned that the occurrence in question was witnessed by P.W. 3. On the above premise, the learned counsel for applicant submits that there is no basis for filing the application under Section 311 Cr. P. C. by the victim/opposite party3. Referring to the judgement of Supreme Court in Raja Ram Prasad Yadav Vs. State of Bihar and Another (2013) 14 SCC 461, the learned counsel for applicant submits that when the bona fide of applicant in filing the aforementioned application under Section 311 Cr. P. C. is examined in the light of parameters laid down by Apex Court in aforementioned judgement, it cannot be said that the said application was filed bona fidely. He, therefore, submits that in view of above, Court below has committed a jurisdictional error in passing the order impugned. Consequently, the same is liable to be set aside by this Court. Per contra, the learned A.G.A. representing State opposite party 1 and Mr. Omar Zamin, the learned counsel representing opposite parties 2 and 3 have vehemently opposed the present application. They have invited the attention of the Court to the judgement of the Supreme Court in Varsha Garg v. State of M.P., 2022 SCC OnLine SC 986, wherein Apex Court has held that Section 311 Cr.P.C. now corresponding to Section 348 BNSS is an enabling provision, which enables the Court to find out the truth, which also is the ultimate object of the trial. Since the trial before Court is trial of an accused, therefore, such a trial should be a free and fair trial On account of above, the Code i.e. Cr. P. C. does not provide any time limit for filing an application under Section 311 Cr. P. C. nor an application under Section 311 Cr. P. C. can be rejected on the ground of delay, The only rider attached to the provisions contained in Section 311 Cr. P. C. is that such an application can be filed at any time but before the delivery of judgement.Firdos opposite party 3 falls in the category of victim, as she is the widow of the deceased. She alleges herself to be an eyewitness of the occurrence, therefore, Court below has exercised it's discretion in favour of prosecution. This exercise of discretion by Court below can neither be said to be illegal, unjust, arbitrary or perverse. No pleading has been raised in the affidavit filed in support of present application regarding the prejudice, if any, caused to the applicant, therefore by virtue of the provisions contained in Section 465 Cr. P. C., as the order impugned has been passed by Court below in the interest of justice, therefore, no interference is warranted by this Court in present application. It is lastly contended by the learned A.G.A. and the learned counsel representing opposite parties 2 and 3 that defence cannot guide and govern the quality and quantity of evidence which the prosecution wants to lead in support of the prosecution case. Further, it cannot be said that the application under Section 311 Cr. P. C. was engineered to fill in the lacunae in evidence. On the edifice of aforesaid submission, it is thus urged that no question of law and fact has emerged for consideration by this Court in present application. As such present application is liable to be dismissed. When confronted with above, the learned counsel for applicant could not overcome the same. 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 the victim opposite party 3, this Court finds that the objection raised by the learned A.G.A. for State and the learned counsel representing opposite parties 2 and 3 are not only borne out from the record, but furthermore, the same could not be dislodged by the learned counsel for applicant. As such, no good ground exists to entertain the present application. In view of above, present application fails and is liable to be dismissed. It is, accordingly, dismissed. Order Date :- 8.5.2025 HSM HARI SHANKER MISHRA High Court of Judicature at Allahabad