State of U.P v. Lavpreet Others', under Section

1. Heard Mr. Amit Daga, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and Mr. Avnish Kumar Srivastava, the learned counsel representing informant-opposite party-2.

2. Perused the record.

3. Applicant-Aftab Ali, who is a chargesheeted accused and facing trial before the trial court 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 kindly be pleased to allow instant application by quashing the order dated 18.10.2024, passed by learned Additional District & Sessions Judge, Court No. 11, Saharanpur in Session Trial No. 750 of 2013, 'State of U.P. Vs. Lavpreet & Others', under Section 363, 366, 368, 342 & 376-D LP.C Police Station-Behat, District-Saharanpur (arising out of Case Crime No. 235 of 2012 registered at Police Station-Behat, District-Saharanpur), so that justice be done. May further be pleased to direct the Learned Trial Court (Additional District & Sessions Judge, Court No. 11, Saharanpur) to summon Satyapal Vats (S.S.I.), Subhash Chandra (S.S.I.), Praveen Kumar (S.I.) and Dharmaveer Singh (Inspector CBCID) as court witnesses, for the purposes of their deposition by allowing application dated 10.10.2024, moved by applicant before trial court, under Section 348 B.N.S.S. (Old Section 311 Cr. P.C.), so that justice be done, otherwise accused applicant will suffer irreparable loss and hard injury. May further be pleased to stay the further proceedings of the Session Trial No. 750 of 2013, 'State of U.P. Vs. Lavpreet & Others', under Section 363, 366, 368, 342 & 376-D I.P.C., Police Station-Behat, District- Saharanpur, presently pending before the Court of learned Additional District & Sessions Judge, Court No. 11, Saharanpur, during pendency of instant application (under Section 482 Cr. P.C.), before this Hon'ble Court, so that justice be done, otherwise accused applicant will suffer irreparable loss and hard injury. And/or pass such other and further order as this Hon'ble Court may deem fit and proper in the present circumstances of the case."

4. Present application came up for admission on 13.02.2025 and this Court passed the following order:- "1. Heard Mr. Amit Daga, Advocate alongwith Mr. Sandeep Kumar Srivastava, Advocate who has put in appearance on behalf of applicant by filing his vakalatnama in court today, which is taken on record and the learned A..G.A. for State-opposite party-1.

2. Perused the record.

3. Applicant-Aftab Ali, who is a charge sheeted accused, 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 kindly be pleased to allow instant application by quashing the order dated 18.10.2024, passed by learned Additional District & Sessions Judge, Court No. 11, Saharanpur in Session Trial No. 750 of 2013, 'State of U.P. Vs. Lavpreet & Others', under Section 363, 366, 368, 342 & 376-D LP.C Police Station-Behat, District- Saharanpur (arising out of Case Crime No. 235 of 2012 registered at Police Station-Behat, District-Saharanpur), so that justice be done. May further be pleased to direct the Learned Trial Court (Additional District & Sessions Judge, Court No. 11, Saharanpur) to summon Satyapal Vats (S.S.I.), Subhash Chandra (S.S.I.), Praveen Kumar (S.I.) and Dharmaveer Singh (Inspector CBCID) as court witnesses, for the purposes of their deposition by allowing application dated 10.10.2024, moved by applicant before trial court, under Section 348 B.N.S.S. (Old Section 311 Cr. P.C.), so that justice be done, otherwise accused applicant will suffer irreparable loss and hard injury. May further be pleased to stay the further proceedings of the Session Trial No. 750 of 2013, 'State of U.P. Vs. Lavpreet & Others', under Section 363, 366, 368, 342 & 376-D I.P.C., Police Station-Behat, District-Saharanpur, presently pending before the Court of learned Additional District & Sessions Judge, Court No. 11, Saharanpur, during pendency of instant application (under Section 482 Cr. P.C.), before this Hon'ble Court, so that justice be done, otherwise accused applicant will suffer irreparable loss and hard injury. And/or pass such other and further order as this Hon'ble Court may deem fit and proper in the present circumstances of the case."

4. Record shows that applicant had earlier filed an application under Section 311 Cr.P.C. which was rejected by court below vide order dated 26.09.2024.

5. Feeling aggrieved by above order dated 26.09.2024, applicant approached this court by means of an Application U/S 482 Cr.P.C. No. 33985 of 2024 (Aftab Ali and another Vs. State of U.P. and another), which was dismissed by this Court vide order dated 04.10.2024 with liberty to applicants to file appropriate application before court below. For ready reference the order dated 04.10.2024 is reproduced herein below:- "Sri Amit Daga, learned counsel for the applicants and Sri Karunakar Singh, learned A.G.A. for the State are present. The present application u/s 482 Cr.P.C. has been filed with prayer to quash the order dated 26.09.2024 passed by Additional Sessions Judge, Court No. 11, Saharanpur, in Session Trial No. 750 of 2013 (State of U.P. vs. Lavpreet and others), arising out of Case Crime No. 235 of 2012, under Sections 363, 366, 368, 342, 376-D of I.P.C., P.S. Behat, District Saharanpur, whereby application under Section 348 of B.N.S.S. (Old Section 311 of Cr.P.C.) has been dismissed. Brief facts of the case are that applicants filed an application under Section 348 of B.N.S.S. (old Section 311 of Cr.P.C.) alleging that trial is fixed for recording statement of accused under Section 313 of Cr.P.C. (Section 351 of B.N.S.S.) but prosecution has not examined four previous investigating officers of the case and these witnesses may be summoned as prosecution witnesses. Trial court observed that in the present case, material witnesses of the prosecution i.e. PW-1 (victim), PW-3 (Dr. Abha Atre), PW-5 (S.I. Devendra Singh Bist), PW-6 (Inspector Kamal Singh) and PW-7 Inspector Digamber Singh, have already been examined by the prosecution. Learned counsel for the applicant fairly admits that application in question has been filed to call the prosecution witnesses S.S.I. Satyapal Vats, S.S.I. Subhash Chand, S.I. Praveen Kumar and C.B.C.I.D. Inspector Dharmveer Singh, as prosecution witnesses after the closure the prosecution evidence and the trial is fixed for recording statement of accused under Section 313 of Cr.P.C (351 of B.N.S.S.)/defence evidence. Learned counsel for the applicant further submits that in the present case earlier to summoning the accused persons final report was submitted. It is well settled position of law that applicants/accused persons have no right to direct the prosecution to examine particular witness. It is for the prosecution to adduce or not to adduce any person in evidence. However, learned counsel for applicant admits that applicant has opportunity to produce above witnesses in defence evidence. After some arguments at length, learned counsel for the applicants does not want to press the present application. Learned A.G.A. for State-opposite party-1 and the learned counsel representing first informant/opposite party-2 have no objection to the prayer made by the learned counsel for applicant. In view of above, the present application u/s 482 Cr.P.C. is dismissed as not pressed with liberty to file appropriate application before court below at appropriate stage. Order Date :- 4.10.2024 "

6. Subsequent to above order dated 04.10.2024, applicant filed another application dated 10.10.2024 under Section 311 Cr.P.C. praying therein that four persons namely Sri Satyapal Bats S.S.I., Sri Subhash Chand S.S.I., Praveen Kumar S. I., Dharmveer Singh C.B.C.I.D. be summoned as court witnesses. This application filed by applicant has been rejected by court below by means of impugned order dated 18.10.2024.

7. Learned counsel for applicant submits that admittedly the statement of accused under Section 313 Cr.P.C. has not yet been recorded. Therefore, the stage of producing the defence evidence has not yet arrived. Considering the fact that all the four persons, whose names are mentioned in the application under Section 311 Cr.P.C, are the government employees and therefore it was prayed that they be summoned as court witnesses. However, court below simply reiterated the order passed by this Court as noted herein above and rejected the application under Section 311 Cr.P.C. filed by applicant.

8. On the above premise, it is thus urged by the learned counsel for applicant that court below has not exercised it's jurisdiction diligently but in a casual and caviler fashion. Consequently, the order impugned in present application is liable to be set aside by this Court.

9. Per contra, the learned A.G.A. has vehemently opposed the present application. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant in support of this application with reference to the record at this stage.

10. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon perusal of the record, this Court finds that the matter requires consideration.

11. Notice on behalf of opposite party-1 has been accepted by the learned A.G.A.

12. Issue notice to opposite party no.2. Notice shall be made returnable by 06.03.2025.

13. Put up again as fresh on 06.03.2025. "

5. On the matter being taken up today, the learned counsel for the applicant proceeded to address the Court on merits of the order impugned. However, after sometime he does not wish to press the prayer prayed for by means of the present application.

6. He then contended that liberty be granted to the applicant to produce the witnesses sought to be adduced as court witnesses as defence witnesses at the stage of Section 243 Cr.P.C./315 Cr.P..C.

7. The learned A.G.A. representing the State-opposite party-1 and Mr. Avnish Kumar Srivastava, the learned counsel for first informant-opposite party-2 have no objection to the prayer of the learned counsel for the applicant.

8. In view of above, prayer prayed for by means of this application is now refused.

9. In view of above, this application is finally disposed of with the liberty as noted above. Order Date :- 19.3.2025 Jaswant JASWANT KUMAR High Court of Judicature at Allahabad

1. Heard Mr. Amit Daga, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and Mr. Avnish Kumar Srivastava, the learned counsel representing informant-opposite party-2.

2. Perused the record.

3. Applicant-Aftab Ali, who is a chargesheeted accused and facing trial before the trial court 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 kindly be pleased to allow instant application by quashing the order dated 18.10.2024, passed by learned Additional District & Sessions Judge, Court No. 11, Saharanpur in Session Trial No. 750 of 2013, 'State of U.P. Vs. Lavpreet & Others', under Section 363, 366, 368, 342 & 376-D LP.C Police Station-Behat, District-Saharanpur (arising out of Case Crime No. 235 of 2012 registered at Police Station-Behat, District-Saharanpur), so that justice be done. May further be pleased to direct the Learned Trial Court (Additional District & Sessions Judge, Court No. 11, Saharanpur) to summon Satyapal Vats (S.S.I.), Subhash Chandra (S.S.I.), Praveen Kumar (S.I.) and Dharmaveer Singh (Inspector CBCID) as court witnesses, for the purposes of their deposition by allowing application dated 10.10.2024, moved by applicant before trial court, under Section 348 B.N.S.S. (Old Section 311 Cr. P.C.), so that justice be done, otherwise accused applicant will suffer irreparable loss and hard injury. May further be pleased to stay the further proceedings of the Session Trial No. 750 of 2013, 'State of U.P. Vs. Lavpreet & Others', under Section 363, 366, 368, 342 & 376-D I.P.C., Police Station-Behat, District- Saharanpur, presently pending before the Court of learned Additional District & Sessions Judge, Court No. 11, Saharanpur, during pendency of instant application (under Section 482 Cr. P.C.), before this Hon'ble Court, so that justice be done, otherwise accused applicant will suffer irreparable loss and hard injury. And/or pass such other and further order as this Hon'ble Court may deem fit and proper in the present circumstances of the case."

4. Present application came up for admission on 13.02.2025 and this Court passed the following order:- "1. Heard Mr. Amit Daga, Advocate alongwith Mr. Sandeep Kumar Srivastava, Advocate who has put in appearance on behalf of applicant by filing his vakalatnama in court today, which is taken on record and the learned A..G.A. for State-opposite party-1.

2. Perused the record.

3. Applicant-Aftab Ali, who is a charge sheeted accused, 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 kindly be pleased to allow instant application by quashing the order dated 18.10.2024, passed by learned Additional District & Sessions Judge, Court No. 11, Saharanpur in Session Trial No. 750 of 2013, 'State of U.P. Vs. Lavpreet & Others', under Section 363, 366, 368, 342 & 376-D LP.C Police Station-Behat, District- Saharanpur (arising out of Case Crime No. 235 of 2012 registered at Police Station-Behat, District-Saharanpur), so that justice be done. May further be pleased to direct the Learned Trial Court (Additional District & Sessions Judge, Court No. 11, Saharanpur) to summon Satyapal Vats (S.S.I.), Subhash Chandra (S.S.I.), Praveen Kumar (S.I.) and Dharmaveer Singh (Inspector CBCID) as court witnesses, for the purposes of their deposition by allowing application dated 10.10.2024, moved by applicant before trial court, under Section 348 B.N.S.S. (Old Section 311 Cr. P.C.), so that justice be done, otherwise accused applicant will suffer irreparable loss and hard injury. May further be pleased to stay the further proceedings of the Session Trial No. 750 of 2013, 'State of U.P. Vs. Lavpreet & Others', under Section 363, 366, 368, 342 & 376-D I.P.C., Police Station-Behat, District-Saharanpur, presently pending before the Court of learned Additional District & Sessions Judge, Court No. 11, Saharanpur, during pendency of instant application (under Section 482 Cr. P.C.), before this Hon'ble Court, so that justice be done, otherwise accused applicant will suffer irreparable loss and hard injury. And/or pass such other and further order as this Hon'ble Court may deem fit and proper in the present circumstances of the case."

4. Record shows that applicant had earlier filed an application under Section 311 Cr.P.C. which was rejected by court below vide order dated 26.09.2024.

5. Feeling aggrieved by above order dated 26.09.2024, applicant approached this court by means of an Application U/S 482 Cr.P.C. No. 33985 of 2024 (Aftab Ali and another Vs. State of U.P. and another), which was dismissed by this Court vide order dated 04.10.2024 with liberty to applicants to file appropriate application before court below. For ready reference the order dated 04.10.2024 is reproduced herein below:- "Sri Amit Daga, learned counsel for the applicants and Sri Karunakar Singh, learned A.G.A. for the State are present. The present application u/s 482 Cr.P.C. has been filed with prayer to quash the order dated 26.09.2024 passed by Additional Sessions Judge, Court No. 11, Saharanpur, in Session Trial No. 750 of 2013 (State of U.P. vs. Lavpreet and others), arising out of Case Crime No. 235 of 2012, under Sections 363, 366, 368, 342, 376-D of I.P.C., P.S. Behat, District Saharanpur, whereby application under Section 348 of B.N.S.S. (Old Section 311 of Cr.P.C.) has been dismissed. Brief facts of the case are that applicants filed an application under Section 348 of B.N.S.S. (old Section 311 of Cr.P.C.) alleging that trial is fixed for recording statement of accused under Section 313 of Cr.P.C. (Section 351 of B.N.S.S.) but prosecution has not examined four previous investigating officers of the case and these witnesses may be summoned as prosecution witnesses. Trial court observed that in the present case, material witnesses of the prosecution i.e. PW-1 (victim), PW-3 (Dr. Abha Atre), PW-5 (S.I. Devendra Singh Bist), PW-6 (Inspector Kamal Singh) and PW-7 Inspector Digamber Singh, have already been examined by the prosecution. Learned counsel for the applicant fairly admits that application in question has been filed to call the prosecution witnesses S.S.I. Satyapal Vats, S.S.I. Subhash Chand, S.I. Praveen Kumar and C.B.C.I.D. Inspector Dharmveer Singh, as prosecution witnesses after the closure the prosecution evidence and the trial is fixed for recording statement of accused under Section 313 of Cr.P.C (351 of B.N.S.S.)/defence evidence. Learned counsel for the applicant further submits that in the present case earlier to summoning the accused persons final report was submitted. It is well settled position of law that applicants/accused persons have no right to direct the prosecution to examine particular witness. It is for the prosecution to adduce or not to adduce any person in evidence. However, learned counsel for applicant admits that applicant has opportunity to produce above witnesses in defence evidence. After some arguments at length, learned counsel for the applicants does not want to press the present application. Learned A.G.A. for State-opposite party-1 and the learned counsel representing first informant/opposite party-2 have no objection to the prayer made by the learned counsel for applicant. In view of above, the present application u/s 482 Cr.P.C. is dismissed as not pressed with liberty to file appropriate application before court below at appropriate stage. Order Date :- 4.10.2024 "

6. Subsequent to above order dated 04.10.2024, applicant filed another application dated 10.10.2024 under Section 311 Cr.P.C. praying therein that four persons namely Sri Satyapal Bats S.S.I., Sri Subhash Chand S.S.I., Praveen Kumar S. I., Dharmveer Singh C.B.C.I.D. be summoned as court witnesses. This application filed by applicant has been rejected by court below by means of impugned order dated 18.10.2024.

7. Learned counsel for applicant submits that admittedly the statement of accused under Section 313 Cr.P.C. has not yet been recorded. Therefore, the stage of producing the defence evidence has not yet arrived. Considering the fact that all the four persons, whose names are mentioned in the application under Section 311 Cr.P.C, are the government employees and therefore it was prayed that they be summoned as court witnesses. However, court below simply reiterated the order passed by this Court as noted herein above and rejected the application under Section 311 Cr.P.C. filed by applicant.

8. On the above premise, it is thus urged by the learned counsel for applicant that court below has not exercised it's jurisdiction diligently but in a casual and caviler fashion. Consequently, the order impugned in present application is liable to be set aside by this Court.

9. Per contra, the learned A.G.A. has vehemently opposed the present application. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant in support of this application with reference to the record at this stage.

10. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon perusal of the record, this Court finds that the matter requires consideration.

11. Notice on behalf of opposite party-1 has been accepted by the learned A.G.A.

12. Issue notice to opposite party no.2. Notice shall be made returnable by 06.03.2025.

13. Put up again as fresh on 06.03.2025. "

5. On the matter being taken up today, the learned counsel for the applicant proceeded to address the Court on merits of the order impugned. However, after sometime he does not wish to press the prayer prayed for by means of the present application.

6. He then contended that liberty be granted to the applicant to produce the witnesses sought to be adduced as court witnesses as defence witnesses at the stage of Section 243 Cr.P.C./315 Cr.P..C.

7. The learned A.G.A. representing the State-opposite party-1 and Mr. Avnish Kumar Srivastava, the learned counsel for first informant-opposite party-2 have no objection to the prayer of the learned counsel for the applicant.

8. In view of above, prayer prayed for by means of this application is now refused.

9. In view of above, this application is finally disposed of with the liberty as noted above. Order Date :- 19.3.2025 Jaswant JASWANT KUMAR High Court of Judicature at Allahabad