State of U.P v. Vikkoo Tiwari and others) arising out of Case Crime No
Case Details
Neutral Citation No. - 2025:AHC:4252 Court No. - 71 Case :- APPLICATION U/S 482 No. - 34947 of 2024 Applicant :- Vikkoo Tiwari @ Vikash Tiwari Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ashish Tripathi,Aushim Luthra Counsel for Opposite Party :- G.A.,Raghvendra Prakash Hon'ble Rajeev Misra,J.
Legal Reasoning
1. Heard Mr. Aushim Luthra, the learned counsel for applicant, the learned A.G.A. for State and Mr. Praveen Kumar Mishra, Advocate, holding brief of Mr. Raghvendra Prakash, the learned counsel representing first informant opposite party-2. 2. Perused the record. 3. Applicant- Vikkoo Tiwari @ Vikash Tiwari, who is a charge sheeted accused and facing trial before Court below, has approached this Court by means of present application under Section 482 Cr.P.C. 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 482 Cr.P.C. and quash the impugned order dated 18.09.2024 and the entire proceedings of S.T. No.283 of 2011 (State of U.P. vs. Vikkoo Tiwari and others) arising out of Case Crime No.164 of 2010 under Section 302/34 IPC, Section 25 of Arms Act, Police Station Daraganj, District Prayagraj, pending in the Court of Learned Special Judge SC/ST Act, Prayagraj and the witnesses PW1 and PW2 be permitted to be recalled and re- examined. It is further prayed that this Hon'ble court may be pleased to stay the entire proceedings of S.T. No.283 of 2011 (State of U.P. vs. Vikkoo Tiwari and others) arising out of Case Crime No.164 of 2010 under Section 302/34 IPC, Section 25 of Arms Act, Police Station Daraganj, District Prayagraj, pending in the Court of Learned Special Judge SC/ST Act, Prayagraj, or this Hon'ble Court may be pleased to stay the pronouncement of the judgement in the aforementioned trial. And/or This Hon'ble Court be pleased to pass any order or further orders which this Hon'ble Court may deem fit on the facts and circumstances of the present case." 4. Learned counsel for applicant submits that the order impugned dated 18.09.2024 passed by Court below rejecting the application dated 30.07.2024 under Section 311 Cr.P.C. filed by applicant is manifestly illegal and in excess of jurisdiction. Consequently, the same is liable to be quashed by this Court. According to the learned counsel for applicant, the counsel engaged by the accused- applicant for conducting the trial of accused died during the pendency of trial. As such, a new counsel was engaged by accused-applicant for conducting the trial of accused-applicant. However, upon perusal of record, the new counsel discovered that certain questions, which are of importance from the defence point of view had not been put to the witnesses namely PW-1 and PW-2. Accordingly, an application under Section 311 Cr.P.C. was filed by applicant accused before Court below to recall PW-1 and PW-2. However, the said application has been erroneously rejected by Court below. 5. Learned counsel for applicant submits that since the new counsel engaged by the accused-applicant was not aware of the defence strategy adopted by the earlier counsel, therefore, in the interest of justice i.e. fair trial, the impugned order passed by Court below is liable to be set aside by this Court and the application under Section 311 Cr.P.C. filed by applicant before Court below is liable be allowed by this Court. To buttress his submission, he has relied upon the judgment of Supreme Court in Hoffman Andreas Vs. Inspector of Customs, Amritsar, (2000) 10 SCC 430, wherein the Apex Court on the aforesaid grounds allowed the application under Section 311 Cr.P.C. 6. Per contra, the learned A.G.A for State-opposite party-1 and Mr. Praveen Kumar Mishra, Advocate, holding brief of Mr. Raghvendra Prakash, the learned counsel representing first informant opposite party-2 have vehemently opposed the present application. Learned A.G.A. with reference to the record submits that in the criminal trial pending before Court below, there are two accused namely Vikkoo Tiwari and Manish Vishwakarma. However, the application under Section 311 Cr.P.C. (copy of which is on record at page 53 of the paper book) was filed by only one of the accused namely Vikkoo Tiwari. No explanation has come forward as to why the other accused has not joined the present applicant, in filing the application under Section 311 Cr.P.C. It is next contended by the learned A.G.A. that the application under Section 311 Cr.P.C. was filed before Court below on two grounds;- firstly, the earlier counsel engaged by the accused to conduct the trial of accused had died during the pendency of trial and therefore, a new counsel was engaged by the accused to conduct their trial. Upon perusal of record, the new counsel, who was unaware of the defence strategy adopted by earlier counsel opined that an application under Section 311 Cr.P.C. should be filed for recall of PW-1 and PW-2 as certain important questions from the defence point of view have not been put to the witnesses i.e. PW-1 and PW-2. Secondly, the questions that were proposed to be put to the witnesses i.e. PW-1 and PW-2 were also elaborated in the application under Section 311 Cr.P.C. According to the learned A.G.A., neither the name of earlier counsel nor the date of his death was mentioned in the application under Section 311 Cr.P.C. filed on behalf of accused-applicant. The Court below after examination of the record has returned a categorical finding that the trial of accused commenced in the year, 2011 and all the prosecution witnesses have already deposed before Court below. The trial is at the stage of Section 313 Cr.P.C. i.e for recording the statement of accused. It is at this belated stage that the application under Section 311 Cr.P.C. was filed. Apart from above, Court below has returned a further finding that PW-1 was cross examined exhaustively on behalf of the accused and his examination-in-chief runs into as many as 16 pages. Similarly, PW-2 was also cross-examined at length and the examination-in- chief of PW-2 runs into as many as 15 pages. He, therefore, submits that the application under Section 311 Cr.P.C. was engineered by the accused at a very belated stage only to delay the trial and further to fill up the lacuna, which exists in the cross examination of prosecution witnesses i.e. PW-1 and PW-2 and detrimental to the interest of the accused. According to the learned A.G.A., a witness cannot be recalled to fill up the lacuna in evidence. 7. It is lastly submitted by the learned A.G.A. that Section 311 Cr.P.C. is an enabling provision, which enables the Court to unearth the truth. As such, an application under Section 311 Cr.P.C. can be filed at any stage of the proceedings but before the judgment is pronounced by the Trial Judge to enable the Court to find out the truth. Consequently, no limitation has been prescribed for filing an application under Section 311 Cr.P.C. It is in view of above that the Apex Court has now crystallized the law regarding recall of a witness by providing that the application under Section 311 Cr.P.C. should not only disclose the questions proposed to be put to the witness but also the relevancy of the same. To buttress his submission, he has referred to the judgment of Supreme Court in Raja Ram Prasad Yadav Vs. State of Bihar and Another, (2013) 14 SCC 461. It is true that broadly speaking the questions sought to be put to the witness were mentioned in the application under Section 311 Cr.P.C. filed by the accused but the relevancy of the same has not been pointed out in the application. As such, the application under Section 311 Cr.P.C. filed by accused-applicant was basically engineered to fill up the lacuna in the defence evidence. On this aspect the Court below has returned a finding that the question sought to be put to the accused are not such that in the absence of answers to the same the trial cannot be decided and secondly if the application under Section 311 Cr.P.C. filed by accused is allowed the same shall result in de novo trial which is not the object behind Section 311 Cr.P.C. On the above premise, the learned A.G.A. submits that the ratio laid down in aforementioned judgment of the Supreme Court and relied upon by the learned counsel for applicant is not attracted in the present case. As such, no illegality has been committed by Court below in passing the order impugned. Consequently, the present application is liable to be dismissed. 8. When confronted with above, the learned counsel for applicant could not overcome the same. 9. 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 not only borne out from the record but furthermore, the same could not be dislodged by the learned counsel for applicant with reference to the record. As such, no good ground exists to entertain the present application. 10. In view of above, the present application fails and is liable to be dismissed. 11. It is, accordingly, dismissed. Order Date :- 6.1.2025 Imtiyaz Digitally signed by :- IMTIYAZ AHMAD High Court of Judicature at Allahabad