High Court · 2025

1. Heard Mr. Manoj Kumar, the learned counsel for applicants and the learned A.G.A. for State-opposite party-1.

2. Perused the record.

3. Applicant-Murari Maurya @ Murali, who is a charge sheeted accused and facing trial before Court below, 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 allow this application and quash the impugned order dated 12.02.2025 passed by the Additional Sessions Judge/Special Judge (U.P.S.E.B), Gorakhpur in Sessions Trial No.103 of 2007 (State Versus Ram Darash and others) arising out of Case Crime No.190 of 2007, Under Section 364, 302, 201 I.P.C. relating to Bansgaon, District Gorakhpur. It is further prayed that this Hon'ble Court may graciously be pleased to stay the effect and operation of the impugned order dated 12.02.2025 passed by the Additional Sessions Judge/Special Judge (U.P.S.E.Β), Gorakhpur in Sessions Trial No.103 of 2007 (State Versus Ram Darash and others) arising out of Case Crime No.190 of 2007, Under Section 364, 302, 201 I.P.C. relating to Police Station Bansgaon, District Gorakhpur, during the pendency of the present Criminal Misc. Application before this Hon'ble Court, failing which applicant will suffer irreparable loss and injury and/or pass such other and further order which this Hon'ble court may deem fit and proper circumstances of the case."

4. It transpires from record that during pendency of trial, an application dated 09.07.2024 under Section 311 Cr.P.C. was filed by accused-applicant before Court below for summoning of certain persons as defence witnesses. The said application came to be allowed by Court below, vide order dated 16.08.2024. However, in spite of order dated 16.08.2024, accused-applicant failed to produce the defence witnesses. Ultimately, an application dated 15.01.2025 was filed on behalf of applicant before Court below i.e. till the defence evidence is not recorded, the trial may not be fixed for hearing. It is this application dated 15.01.2025, which has been rejected by Court below by means of order impugned in present application.

5. Thus feeling aggrieved by the order dated 15.01.2025, applicant has approached this Court by means of present application under Section 528 BNSS.

6. Learned counsel for applicant submits that order impugned in present application is not only illegal, unjust but also arbitrary. Admittedly, the trial pending before Court below is that of accused-applicant, therefore, the said trial should be a free and fair trial. The ultimate object of the trial is to find out the truth. Once the accused-applicant has been denied the right to adduce the defence evidence, the trial of accused-applicant shall now be farce. He, therefore, submits that in view of aforesaid circumstances, the order impugned cannot be sustained in law.

7. According to the learned counsel for applicant, principles of natural justice demands that justice should not only be done but also seen to be done. Since by the order impugned in present application, there is inherent violation of the principles of natural justice, inasmuch as, the accused-applicant has been denied the right to had defence evidence, therefore, the order impugned is liable to be set aside by this Court. Since the ultimate object of the trial to find out the truth, and in the absence of defence evidence, the Court below will have an angular view of the case and not a composite view of the case, therefore, in the light of the aforesaid devout objective, the order impugned cannot be sustained and therefore, liable to be set aside by this Court.

8. Per contra, the learned A.G.A. representing State-opposite party- 1 has vehemently opposed the present application. Learned A.G.A. submits that it is true that the application dated 09.07.2024 under Section 311 Cr.P.C. filed by accused-applicant before Court below was allowed by Court below, vide order dated 16.08.2024. However, in spite of the fact that as many as 17 dates were granted to applicant to produce defence witnesses, he failed to produce the defence witnesses. In view of above, it cannot be said that Court below did not extend sufficient opportunity to the accused- applicant to produce defence witnesses.

9. It is next contended by the learned A.G.A. that accused- applicant himself filed an application dated 10.12.2024 (Paper No. 113-Kha) before Court below, whereby accused-applicant prayed that the trial be heard on merits. He, therefore, contends that accused-applicant can not play hot and cold at the same time.

10. It is lastly contended by the learned A.G.A. that the issue, that summons were issued by Court below to the proposed witnesses, has been raised by the learned counsel for applicant half heartedly. No extract of the summons progress register of Court concerned has been brought on record nor any question answer form has been filed in support of aforesaid plea that subsequent to the order impugned dated 16.08.2024, no summons were issued by the office to the proposed witnesses. Referring to the judgment of Supreme Court in Bharat Singh and Others Vs. State of Haryana and Others, (1988) 4 SCC 534, the learned A.G.A. submits that since the plea of fact raised by the learned counsel for applicant in support of this application is neither substantiated by material fact nor any document has been brought on record to evidence the same, therefore, the said plea is liable to be ignored by this Court. On the above premise, the learned A.G.A. thus submits that since no substantial question of law or fact is involved in present application, therefore, the same is liable to be dismissed.

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

12. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon perusal of record, this Court finds that the objections raised by the learned A.G.A. in opposition to this application 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. In view of above, this Court does not find any good ground to entertain the present application.

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

14. It is, accordingly, dismissed. Order Date :- 9.4.2025 Vinay VINAY KUMAR High Court of Judicature at Allahabad

1. Heard Mr. Manoj Kumar, the learned counsel for applicants and the learned A.G.A. for State-opposite party-1.

2. Perused the record.

3. Applicant-Murari Maurya @ Murali, who is a charge sheeted accused and facing trial before Court below, 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 allow this application and quash the impugned order dated 12.02.2025 passed by the Additional Sessions Judge/Special Judge (U.P.S.E.B), Gorakhpur in Sessions Trial No.103 of 2007 (State Versus Ram Darash and others) arising out of Case Crime No.190 of 2007, Under Section 364, 302, 201 I.P.C. relating to Bansgaon, District Gorakhpur. It is further prayed that this Hon'ble Court may graciously be pleased to stay the effect and operation of the impugned order dated 12.02.2025 passed by the Additional Sessions Judge/Special Judge (U.P.S.E.Β), Gorakhpur in Sessions Trial No.103 of 2007 (State Versus Ram Darash and others) arising out of Case Crime No.190 of 2007, Under Section 364, 302, 201 I.P.C. relating to Police Station Bansgaon, District Gorakhpur, during the pendency of the present Criminal Misc. Application before this Hon'ble Court, failing which applicant will suffer irreparable loss and injury and/or pass such other and further order which this Hon'ble court may deem fit and proper circumstances of the case."

4. It transpires from record that during pendency of trial, an application dated 09.07.2024 under Section 311 Cr.P.C. was filed by accused-applicant before Court below for summoning of certain persons as defence witnesses. The said application came to be allowed by Court below, vide order dated 16.08.2024. However, in spite of order dated 16.08.2024, accused-applicant failed to produce the defence witnesses. Ultimately, an application dated 15.01.2025 was filed on behalf of applicant before Court below i.e. till the defence evidence is not recorded, the trial may not be fixed for hearing. It is this application dated 15.01.2025, which has been rejected by Court below by means of order impugned in present application.

5. Thus feeling aggrieved by the order dated 15.01.2025, applicant has approached this Court by means of present application under Section 528 BNSS.

6. Learned counsel for applicant submits that order impugned in present application is not only illegal, unjust but also arbitrary. Admittedly, the trial pending before Court below is that of accused-applicant, therefore, the said trial should be a free and fair trial. The ultimate object of the trial is to find out the truth. Once the accused-applicant has been denied the right to adduce the defence evidence, the trial of accused-applicant shall now be farce. He, therefore, submits that in view of aforesaid circumstances, the order impugned cannot be sustained in law.

7. According to the learned counsel for applicant, principles of natural justice demands that justice should not only be done but also seen to be done. Since by the order impugned in present application, there is inherent violation of the principles of natural justice, inasmuch as, the accused-applicant has been denied the right to had defence evidence, therefore, the order impugned is liable to be set aside by this Court. Since the ultimate object of the trial to find out the truth, and in the absence of defence evidence, the Court below will have an angular view of the case and not a composite view of the case, therefore, in the light of the aforesaid devout objective, the order impugned cannot be sustained and therefore, liable to be set aside by this Court.

8. Per contra, the learned A.G.A. representing State-opposite party- 1 has vehemently opposed the present application. Learned A.G.A. submits that it is true that the application dated 09.07.2024 under Section 311 Cr.P.C. filed by accused-applicant before Court below was allowed by Court below, vide order dated 16.08.2024. However, in spite of the fact that as many as 17 dates were granted to applicant to produce defence witnesses, he failed to produce the defence witnesses. In view of above, it cannot be said that Court below did not extend sufficient opportunity to the accused- applicant to produce defence witnesses.

9. It is next contended by the learned A.G.A. that accused- applicant himself filed an application dated 10.12.2024 (Paper No. 113-Kha) before Court below, whereby accused-applicant prayed that the trial be heard on merits. He, therefore, contends that accused-applicant can not play hot and cold at the same time.

10. It is lastly contended by the learned A.G.A. that the issue, that summons were issued by Court below to the proposed witnesses, has been raised by the learned counsel for applicant half heartedly. No extract of the summons progress register of Court concerned has been brought on record nor any question answer form has been filed in support of aforesaid plea that subsequent to the order impugned dated 16.08.2024, no summons were issued by the office to the proposed witnesses. Referring to the judgment of Supreme Court in Bharat Singh and Others Vs. State of Haryana and Others, (1988) 4 SCC 534, the learned A.G.A. submits that since the plea of fact raised by the learned counsel for applicant in support of this application is neither substantiated by material fact nor any document has been brought on record to evidence the same, therefore, the said plea is liable to be ignored by this Court. On the above premise, the learned A.G.A. thus submits that since no substantial question of law or fact is involved in present application, therefore, the same is liable to be dismissed.

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

12. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon perusal of record, this Court finds that the objections raised by the learned A.G.A. in opposition to this application 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. In view of above, this Court does not find any good ground to entertain the present application.

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

14. It is, accordingly, dismissed. Order Date :- 9.4.2025 Vinay VINAY KUMAR High Court of Judicature at Allahabad