Judge/F.T.C. Ist (Crime Against Women), Jaunpur, Under v. Vishal Sonkar and another), arising out of Case Crime No

1. Heard the learned counsel for applicant, the learned A.G.A. for State-opposite party no.2 and Mr. Gaurav Srivastava, the learned counsel representing accused-opposite party 2.

2. Perused the record.

3. Applicant Reena, who is the prosecutrix (daughter of first informant) 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 and further may be pleased to quash the impugned order dated-8.10.2024, passed by the Additional Session Judge/F.T.C. Ist (Crime Against Women), Jaunpur, Under Section- 311 Cr.P.C. in S.T. No. 152 of 2024 (State Vs. Vishal Sonkar and another), arising out of Case Crime No. 503 of 2023, under sections- 376, 504 I.P.C. & 66 I.T. Act, Police Station- Line Bazar District- Jaunpur. It is further prayed that this Hon'ble court may be pleased to directing the learned Additional Session Judge/F.T.C. Ist (Crime Against Women), Jaunpur, to ensure the cross examination of P.W.-1 as well as record the re-statement and re-cross examination of P.W.-2 Under Section-311 Cr.P.C. in S.T. No. 152 of 2024 (State Vs. Vishal Sonkar and another), arising out of Case Crime No. 503 of 2023, under sections- 376, 504 I.P.C. & 66 I.T. Act, Police Station- Line Bazar District- Jaunpur, pending before the learned Additional Session Judge/F.T.C. Ist (Crime Against Women), Jaunpur. It is further also prayed that this Hon'ble court may be pleased to stay further proceeding of the S.T. No. 152 of 2024 (State Vs. Vishal Sonkar and another), arising out of Case Crime No. 503 of 2023, under sections- 376, 504 I.P.C. & 66 I.T. Act, Police Station- Line Bazar District- Jaunpur, pending before the learned Additional Session Judge/F.T.C. Ist (Crime Against Women), Jaunpur, during the pendency of the present application before this Hon'ble Court, otherwise the applicant shall suffer irreparable loss and injury."

4. Record shows that a first information report dated 25th September, 2023 was lodged by first informant-opposite party no.3 Lalta Sonkar (father of the prosecutrix) and was registered as Case Crime No. 0503 of 2023, under Sections 376 and 504 of I.P.C. and Section 66E of I.T. (Amendment) Act, 2008, Police Station-Line Bazar, District- Jaunpur. In the aforementioned first information report, two persons, namely, Vishal Sonkar (accused-opposite party 2 herein) and Subash Sonkar have been nominated as named accused.

5. After aforementioned first information report was lodged, Investigating OfÏcer proceeded to conduct the statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. On the basis of material collected by him during course of investigation including the statements prosecutrix i.e. applicant herein recorded under Sections 161 and 164 Cr.P.C., the Investigating OfÏcer came to the conclusion that offence complained of is established only against one of the named accused i.e. Vishal Sonkar (opposite party no.2 herein). He, accordingly, submitted the charge-sheet/police report in terms of Section 173 (2) Cr.P.C., whereby aforementioned named accused was charge-sheeted.

6. Upon submission of aforementioned charge- sheet/police report, cognizance was taken upon the same by the jurisdictional magistrate in exercise of jurisdiction under Section 190 (1) (b) Cr.P.C. However, an offence complained of is triable exclusively by the Court of sessions, therefore, after complying with the provisions of Section 207 Cr.P.C., the jurisdictional magistrate committed the case to the court of sessions in terms of Section 209 Cr.P.C.

7. In view of above, Sessions Trial No. 152 of 2024 (State Vs. Vishal Sonkar) came to be registered in the Court of Additional Sessions Judge/F.T.C.-I (Crime Against Women), Jaunpur. The concerned Sessions Judge proceeded. He framed charges against the named accused i.e. opposite party no.2, who denied the offence complained of against him and demanded trial. Resultantly, the trial procedure commenced.

8. Prosecution in discharge of its burden to bring home the charge so framed against the named and charge-sheeted accused i.e. opposite party no.2 adduced the prosecutrix i.e. the applicant herein as P.W.-1. After the deposition of prosecutrix i.e. P.W.-1 was recorded, she filed an application dated 15th July, 2024 under Section 311 Cr.P.C. Said application was filed on the ground that on account false assurance given by the charge- sheeted accused i.e. opposite party no.2, the prosecutrix i.e. P.W.-1 had deposed in favour of accused-opposite party no.2 before the court below. However, irrespective of above, the prosecutrix was not declared hostile and said fact was not disclosed to her, nor cross-examination of herself was conducted on behalf of the charge- sheeted accused i.e. opposite party no.2 or by the District Government Counsel (D.G.C.), Criminal. The aforesaid application filed by the applicant- prosecutrix before court below was opposed by the charge-sheeted accused i.e. opposite party no.2. Ultimately, court below by means of the order impugned dated 8th October, 2024 rejected the aforementioned application.

9. Thus, feeling aggrieved by the order impugned dated 8th October, 2024 passed by court below, applicant has now approached this Court by means of present application under Section 482 Cr.P.C.

10. At the very outset, learned A.G.A. has raised a preliminary objection qua the maintainability of the present application by contending that since the applicant is not the first informant of concerned case crime number, therefore, she has no locus to maintain the present application. On the above premise, the learned A.G.A. submits that this application is liable to be dismissed.

11. When confronted with the above, the learned counsel for the applicant submits that since applicant is the prosecutrix of the concerned case crime number, therefore, she shall fall in the category of victim. Referring to the judgment of Supreme Court in the case of Rekha Murarka Vs. State of West Bengal and Another, reported in (2020) 2 SCC 474 the learned counsel for applicant submits that the Supreme Court has now held that the victim is not a mute spectator in the trial proceedings but she/he also has a right to participate in the same. Since by means of the order impugned, it is right of the applicant- prosecutrix, which shall stand affected, therefore, she has every right to maintain the present application. On the above premise, learned counsel for applicant submits that the preliminary objection raised by the learned A.G.A. in opposition to this application, is unsustainable in law and fact in view of the judgment of the Supreme Court referred to above and therefore, the same is liable to be rejected by this Court.

12. When confronted with the above, learned A.G.A. could not overcome to the same.

13. Having heard the learned counsel for applicant, learned A.G.A. for State and upon perusal of record, this Court finds that the preliminary objection raised by the learned A.G.A. the present regarding maintainability of application is unsustainable in law and fact in view of the judgment of the Supreme Court referred to above.

14. Resultantly, the preliminary objection raised by the learned A.G.A. stands rejected.

15. Learned counsel for applicant then submits that the order impugned in present application is manifestly illegal and in excess of jurisdiction. Consequently, the same is liable to be quashed by this Court. The criminality as alleged in the first information report was committed by the charge- sheeted accused/opposite party no.2 upon the prosecutrix herself. On account of false assurance given by the charge-sheeted accused-opposite party no.2, the prosecutrix i.e. applicant had initially deposed in favour of the charge-sheeted accused i.e. opposite party no.2 before the court below.

16. However, the charge-sheeted accused (opposite party no.2) subsequently resiled from his promise. Apart from the above, though the prosecutrix i.e. applicant deposed before the court below in favour of opposite party no.2 but she was not declared hostile by the court below nor she was herself cross-examined on behalf of the prosecution. On the above premise, the learned counsel for the applicant, thus, submits that the trial procedure adopted by the court below is manifestly illegal, which renders the closure of the deposition of prosecutrix i.e. P.W.-1 itself illegal. On the above premise, the learned counsel for applicant submits that the application under Section 311 Cr.P.C. was rightly filed by the applicant before the court below. Reference was then made to the judgment of the Supreme Court in the case of Raja Ram Prasad Yadav Vs. State of Bihar and another reported in (2013) 14 SCC 461, wherein the Supreme Court has laid down parameters which are required to be examined for deciding the bona fide of an applicant in filing an application under Section 311 Cr.P.C. No attempt was made by the court below to examine the bona fide of the applicant in filing of the application under Section 311 Cr.P.C. in the light of the parameters laid down by the Supreme Court in the case of Raja Ram Prasad Yadav (Supra). To the contrary, the court below has rejected the application filed by the applicant under Section 311 Cr.P.C. on stereo type and superficial findings. It is, thus, urged by the learned counsel for applicant that court below has passed the order impugned in a casual and cavalier fashion and not in diligent exercise of jurisdiction vested in it. On the above premise, it is, thus, submitted by the learned counsel for applicant that the order impugned is, therefore, liable to be set aside by this Court.

17. Per contra, the learned A.G.A. for State- opposite party no.1 and Mr. Gaurav Kumar Srivastava, learned counsel representing the accused-opposite party no.2 have vehementally opposed the present application. They submit that since the order impugned is perfectly just and legal, therefore, the same is not liable to be interfered by this Court. Court below while rejecting the application under Section 311 Cr.P.C. filed by the applicant-prosecutrix has assigned clear, categorical and cogent reasons. Such findings have not been dislodged by the learned counsel for the applicant while challenging the order impugned. It is, thus, urged by the learned A.G.A. for State-opposite party no.1 and learned counsel representing accused-opposite party no.2 that since the findings returned by the court below remain intact, the conclusion drawn by court below cannot be altered. On the above premise, it is, thus, urged by the learned A.G.A. for State- opposite party no.1 and learned counsel representing accused-opposite party no.2 that no interference is warranted by this Court in present application. However, they could not dislodge the factual and legal submissions urged by the learned counsel for the applicant in support of this application, as noted herein-above.

18. Having heard the learned counsel for applicant, the learned A.G.A. for State-opposite party no.1, the learned counsel representing accused-opposite party no.2 and upon perusal of the record, this Court finds that ultimately the trial before the court below is regarding the criminality which is alleged to have been committed by the charge-sheeted accused i.e. opposite party no.2 against the prosecutrix (applicant herein). In view of above, the trial of necessity has to be a free and fair trial. Accordingly, the principles of natural justice get attracted which provide that justice should not only be done but should also seen to be done. In view of the law laid down by the Supreme Court in the case of Rekha Murarka (Supra), the victim/prosecutrix in the present case has substantive right to participate in the trial proceedings. Deposition of the prosecutrix before the court below in favour of the accused-opposite party no.2 was not bona fide but on account of deceive played by accused-opposite party no.2. In view of above, proseuctirx had no other option but to file a recall application under Section 311 Cr.P.C. The Apex Court in the case of Varsha Garg Vs. State of Madhya Pradesh & Others, reported in 2022 SCC OnLine SC 986, has clearly observed that the trial should be a free and fair trial. The ultimate object of the trial is to find out the truth.

19. In light of above, it cannot be said that there is no bona fide on behalf of the applicant in filing an application under Section 311 Cr.P.C. The court below while passing the order impugned has completely ignored the aforesaid aspect of the matter and on the basis of superficial and stereo type findings rejected the application filed by the application under Section 311 Cr.P.C. As such, the court below has failed to exercise its jurisdiction diligently in the light of the parameters laid down by the Supreme Court in the case of Raja Ram Prasad Yadav (Supra).

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

21. It is, accordingly, allowed.

22. Order impugned dated 8th October, 2024 passed in Sessions Trial No. 152 of 2024 (State Vs. Vishal Sonkar and another), arising out of Case Crime No. 503 of 2023, under sections- 376, 504 I.P.C. & 66 I.T. Act, Police Station- Line Bazar District- Jaunpur (Annexure-1 to the afÏdavit filed in support of the present application), is liable to be quashed. It is, accordingly, quashed.

23. The matter stand remitted to the court below for passing a fresh order on the application under Section 311 Cr.P.C. filed by applicant before court below, in light of the observations made herein- above. The necessary exercise shall be undertaken by court below within a period of one month from the date of pretension of a certified copy of this order. (Rajeev Misra, J.) Order Date :- 10.4.2025 Sushil/- SUSHIL KUMAR SINGH High Court of Judicature at Allahabad

1. Heard the learned counsel for applicant, the learned A.G.A. for State-opposite party no.2 and Mr. Gaurav Srivastava, the learned counsel representing accused-opposite party 2.

2. Perused the record.

3. Applicant Reena, who is the prosecutrix (daughter of first informant) 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 and further may be pleased to quash the impugned order dated-8.10.2024, passed by the Additional Session Judge/F.T.C. Ist (Crime Against Women), Jaunpur, Under Section- 311 Cr.P.C. in S.T. No. 152 of 2024 (State Vs. Vishal Sonkar and another), arising out of Case Crime No. 503 of 2023, under sections- 376, 504 I.P.C. & 66 I.T. Act, Police Station- Line Bazar District- Jaunpur. It is further prayed that this Hon'ble court may be pleased to directing the learned Additional Session Judge/F.T.C. Ist (Crime Against Women), Jaunpur, to ensure the cross examination of P.W.-1 as well as record the re-statement and re-cross examination of P.W.-2 Under Section-311 Cr.P.C. in S.T. No. 152 of 2024 (State Vs. Vishal Sonkar and another), arising out of Case Crime No. 503 of 2023, under sections- 376, 504 I.P.C. & 66 I.T. Act, Police Station- Line Bazar District- Jaunpur, pending before the learned Additional Session Judge/F.T.C. Ist (Crime Against Women), Jaunpur. It is further also prayed that this Hon'ble court may be pleased to stay further proceeding of the S.T. No. 152 of 2024 (State Vs. Vishal Sonkar and another), arising out of Case Crime No. 503 of 2023, under sections- 376, 504 I.P.C. & 66 I.T. Act, Police Station- Line Bazar District- Jaunpur, pending before the learned Additional Session Judge/F.T.C. Ist (Crime Against Women), Jaunpur, during the pendency of the present application before this Hon'ble Court, otherwise the applicant shall suffer irreparable loss and injury."

4. Record shows that a first information report dated 25th September, 2023 was lodged by first informant-opposite party no.3 Lalta Sonkar (father of the prosecutrix) and was registered as Case Crime No. 0503 of 2023, under Sections 376 and 504 of I.P.C. and Section 66E of I.T. (Amendment) Act, 2008, Police Station-Line Bazar, District- Jaunpur. In the aforementioned first information report, two persons, namely, Vishal Sonkar (accused-opposite party 2 herein) and Subash Sonkar have been nominated as named accused.

5. After aforementioned first information report was lodged, Investigating OfÏcer proceeded to conduct the statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. On the basis of material collected by him during course of investigation including the statements prosecutrix i.e. applicant herein recorded under Sections 161 and 164 Cr.P.C., the Investigating OfÏcer came to the conclusion that offence complained of is established only against one of the named accused i.e. Vishal Sonkar (opposite party no.2 herein). He, accordingly, submitted the charge-sheet/police report in terms of Section 173 (2) Cr.P.C., whereby aforementioned named accused was charge-sheeted.

6. Upon submission of aforementioned charge- sheet/police report, cognizance was taken upon the same by the jurisdictional magistrate in exercise of jurisdiction under Section 190 (1) (b) Cr.P.C. However, an offence complained of is triable exclusively by the Court of sessions, therefore, after complying with the provisions of Section 207 Cr.P.C., the jurisdictional magistrate committed the case to the court of sessions in terms of Section 209 Cr.P.C.

7. In view of above, Sessions Trial No. 152 of 2024 (State Vs. Vishal Sonkar) came to be registered in the Court of Additional Sessions Judge/F.T.C.-I (Crime Against Women), Jaunpur. The concerned Sessions Judge proceeded. He framed charges against the named accused i.e. opposite party no.2, who denied the offence complained of against him and demanded trial. Resultantly, the trial procedure commenced.

8. Prosecution in discharge of its burden to bring home the charge so framed against the named and charge-sheeted accused i.e. opposite party no.2 adduced the prosecutrix i.e. the applicant herein as P.W.-1. After the deposition of prosecutrix i.e. P.W.-1 was recorded, she filed an application dated 15th July, 2024 under Section 311 Cr.P.C. Said application was filed on the ground that on account false assurance given by the charge- sheeted accused i.e. opposite party no.2, the prosecutrix i.e. P.W.-1 had deposed in favour of accused-opposite party no.2 before the court below. However, irrespective of above, the prosecutrix was not declared hostile and said fact was not disclosed to her, nor cross-examination of herself was conducted on behalf of the charge- sheeted accused i.e. opposite party no.2 or by the District Government Counsel (D.G.C.), Criminal. The aforesaid application filed by the applicant- prosecutrix before court below was opposed by the charge-sheeted accused i.e. opposite party no.2. Ultimately, court below by means of the order impugned dated 8th October, 2024 rejected the aforementioned application.

9. Thus, feeling aggrieved by the order impugned dated 8th October, 2024 passed by court below, applicant has now approached this Court by means of present application under Section 482 Cr.P.C.

10. At the very outset, learned A.G.A. has raised a preliminary objection qua the maintainability of the present application by contending that since the applicant is not the first informant of concerned case crime number, therefore, she has no locus to maintain the present application. On the above premise, the learned A.G.A. submits that this application is liable to be dismissed.

11. When confronted with the above, the learned counsel for the applicant submits that since applicant is the prosecutrix of the concerned case crime number, therefore, she shall fall in the category of victim. Referring to the judgment of Supreme Court in the case of Rekha Murarka Vs. State of West Bengal and Another, reported in (2020) 2 SCC 474 the learned counsel for applicant submits that the Supreme Court has now held that the victim is not a mute spectator in the trial proceedings but she/he also has a right to participate in the same. Since by means of the order impugned, it is right of the applicant- prosecutrix, which shall stand affected, therefore, she has every right to maintain the present application. On the above premise, learned counsel for applicant submits that the preliminary objection raised by the learned A.G.A. in opposition to this application, is unsustainable in law and fact in view of the judgment of the Supreme Court referred to above and therefore, the same is liable to be rejected by this Court.

12. When confronted with the above, learned A.G.A. could not overcome to the same.

13. Having heard the learned counsel for applicant, learned A.G.A. for State and upon perusal of record, this Court finds that the preliminary objection raised by the learned A.G.A. the present regarding maintainability of application is unsustainable in law and fact in view of the judgment of the Supreme Court referred to above.

14. Resultantly, the preliminary objection raised by the learned A.G.A. stands rejected.

15. Learned counsel for applicant then submits that the order impugned in present application is manifestly illegal and in excess of jurisdiction. Consequently, the same is liable to be quashed by this Court. The criminality as alleged in the first information report was committed by the charge- sheeted accused/opposite party no.2 upon the prosecutrix herself. On account of false assurance given by the charge-sheeted accused-opposite party no.2, the prosecutrix i.e. applicant had initially deposed in favour of the charge-sheeted accused i.e. opposite party no.2 before the court below.

16. However, the charge-sheeted accused (opposite party no.2) subsequently resiled from his promise. Apart from the above, though the prosecutrix i.e. applicant deposed before the court below in favour of opposite party no.2 but she was not declared hostile by the court below nor she was herself cross-examined on behalf of the prosecution. On the above premise, the learned counsel for the applicant, thus, submits that the trial procedure adopted by the court below is manifestly illegal, which renders the closure of the deposition of prosecutrix i.e. P.W.-1 itself illegal. On the above premise, the learned counsel for applicant submits that the application under Section 311 Cr.P.C. was rightly filed by the applicant before the court below. Reference was then made to the judgment of the Supreme Court in the case of Raja Ram Prasad Yadav Vs. State of Bihar and another reported in (2013) 14 SCC 461, wherein the Supreme Court has laid down parameters which are required to be examined for deciding the bona fide of an applicant in filing an application under Section 311 Cr.P.C. No attempt was made by the court below to examine the bona fide of the applicant in filing of the application under Section 311 Cr.P.C. in the light of the parameters laid down by the Supreme Court in the case of Raja Ram Prasad Yadav (Supra). To the contrary, the court below has rejected the application filed by the applicant under Section 311 Cr.P.C. on stereo type and superficial findings. It is, thus, urged by the learned counsel for applicant that court below has passed the order impugned in a casual and cavalier fashion and not in diligent exercise of jurisdiction vested in it. On the above premise, it is, thus, submitted by the learned counsel for applicant that the order impugned is, therefore, liable to be set aside by this Court.

17. Per contra, the learned A.G.A. for State- opposite party no.1 and Mr. Gaurav Kumar Srivastava, learned counsel representing the accused-opposite party no.2 have vehementally opposed the present application. They submit that since the order impugned is perfectly just and legal, therefore, the same is not liable to be interfered by this Court. Court below while rejecting the application under Section 311 Cr.P.C. filed by the applicant-prosecutrix has assigned clear, categorical and cogent reasons. Such findings have not been dislodged by the learned counsel for the applicant while challenging the order impugned. It is, thus, urged by the learned A.G.A. for State-opposite party no.1 and learned counsel representing accused-opposite party no.2 that since the findings returned by the court below remain intact, the conclusion drawn by court below cannot be altered. On the above premise, it is, thus, urged by the learned A.G.A. for State- opposite party no.1 and learned counsel representing accused-opposite party no.2 that no interference is warranted by this Court in present application. However, they could not dislodge the factual and legal submissions urged by the learned counsel for the applicant in support of this application, as noted herein-above.

18. Having heard the learned counsel for applicant, the learned A.G.A. for State-opposite party no.1, the learned counsel representing accused-opposite party no.2 and upon perusal of the record, this Court finds that ultimately the trial before the court below is regarding the criminality which is alleged to have been committed by the charge-sheeted accused i.e. opposite party no.2 against the prosecutrix (applicant herein). In view of above, the trial of necessity has to be a free and fair trial. Accordingly, the principles of natural justice get attracted which provide that justice should not only be done but should also seen to be done. In view of the law laid down by the Supreme Court in the case of Rekha Murarka (Supra), the victim/prosecutrix in the present case has substantive right to participate in the trial proceedings. Deposition of the prosecutrix before the court below in favour of the accused-opposite party no.2 was not bona fide but on account of deceive played by accused-opposite party no.2. In view of above, proseuctirx had no other option but to file a recall application under Section 311 Cr.P.C. The Apex Court in the case of Varsha Garg Vs. State of Madhya Pradesh & Others, reported in 2022 SCC OnLine SC 986, has clearly observed that the trial should be a free and fair trial. The ultimate object of the trial is to find out the truth.

19. In light of above, it cannot be said that there is no bona fide on behalf of the applicant in filing an application under Section 311 Cr.P.C. The court below while passing the order impugned has completely ignored the aforesaid aspect of the matter and on the basis of superficial and stereo type findings rejected the application filed by the application under Section 311 Cr.P.C. As such, the court below has failed to exercise its jurisdiction diligently in the light of the parameters laid down by the Supreme Court in the case of Raja Ram Prasad Yadav (Supra).

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

21. It is, accordingly, allowed.

22. Order impugned dated 8th October, 2024 passed in Sessions Trial No. 152 of 2024 (State Vs. Vishal Sonkar and another), arising out of Case Crime No. 503 of 2023, under sections- 376, 504 I.P.C. & 66 I.T. Act, Police Station- Line Bazar District- Jaunpur (Annexure-1 to the afÏdavit filed in support of the present application), is liable to be quashed. It is, accordingly, quashed.

23. The matter stand remitted to the court below for passing a fresh order on the application under Section 311 Cr.P.C. filed by applicant before court below, in light of the observations made herein- above. The necessary exercise shall be undertaken by court below within a period of one month from the date of pretension of a certified copy of this order. (Rajeev Misra, J.) Order Date :- 10.4.2025 Sushil/- SUSHIL KUMAR SINGH High Court of Judicature at Allahabad