High Court · 2025

Heard Shri J.P. Shukla, learned counsel for the applicant and learned AGA for the State..

2. The present application has been filed for the following main reliefs:- Court/Chief "a. quash the impugned order dated 28.10.2024, passed by learned rejecting Trial applicationdated 21.10.2024, contained as Annexure No.1 to this petition. Magistrate Ayodhya, Judicial b. direct the trial court to conduct an expert examination for carbon dating of the alleged recovered idol to prove its antiquity for defence in trial in the interest of justice."

3. The present application has been filed by the applicant challenging the order dated 28.10.2024, passed by learned Chief Judicial Magistrate, Ayodhya (in short 'trial court') on an application preferred by the accused/applicant under Section 311 Cr.P.C. seeking following relief: " अतः ्ቦीमान जी से ्ቚा्ቕ(cid:14)ना है कि(cid:18)न(cid:18)ली बरामद मूቔኌत माता देव(cid:18)रली स््ቕाकि(cid:27)त मंकिदर (cid:27)रिरसर एवं सनातनी मूቔኌत भगवान राम व भगवान किवष्णू जी स््ቕाकि(cid:27)त मंकिदर (cid:27)रिरसर (cid:18)ी (cid:18)ालगणना/ लिलए किवशेष्ሺता ्ቚा्቎ किवभाग से वै्ሺाकिन(cid:18) (cid:27)रिर्ቌण (cid:18)राया जाने (cid:18)े लिलए जिजलाधि0(cid:18)ारी महेदय एवं (cid:27)ुरातत्व किवभाग (cid:18)ो आदेश देने (cid:18)ी (cid:18)ृ (cid:27)ा (cid:18)ी जावे।" (cid:18)ाब(cid:14)न डेिሡ&ग (cid:18)राने (cid:18)े

4. Brief facts of the case have been narrated in paragraphs no.5 to 10 of the instant application, which are extracted hereunder:- "5. That the petitioner is an under trial accused in the matter in which an occurrence is alleged to have taken palace on 21.09.2012, at night and the first information report was lodged on 22.09.2012 vide Case Crime No.3262/2012, U/s- 457, 380, IPC, Police Station Kotwali Nagar, District Ayodhya. The photocopy as well as type copy of First Information Report dated 22.09.2012, lodged at Case -2- Crime No. 3262/2012, is being appended herewith and marked as Annexure No.2 to this petition.

6. That petitioner was not named in the alleged first information report and during the course of investigation, investigating officer falsely implicated petitioner in the matter by showing fake recovery of fake idol, other than original antique idol, which was not original and declaring it to be the original antique idol only on the consent of priest of temple, while it was not tested that the recovered stolen idol was the antique idol or not.

7. That thereafter charge sheet has been filed in the matter in the tainted manner without going into root of the matter and petitioner and other co accused have been put for trial in Case Crime No. 3262/2012, U/s-457, 380, 411 IPC, Police Station Kotwali Nagar, District Ayodhya, vide Criminal Case No. 7921/2012

8. That prosecution witnesses has been examined and on 29.10.2018, P.W.-7 Sri Surendra Nath Rai/investigating officer of the case was examined on oath and he was also cross examined on behalf of petitioner and in his cross examination he stated that regarding testing of the antiquity of the stolen idol, no test/examination of carbon dating was conducted by him that recovered stolen idol was the same one or not. P.W.7/Investigating officer of the matter has admitted in his cross examination that no effort was made by him to prove the antiquity of the stolen idol and the fake recovered idol. The photo copy as well as type copy of statement in chief of P.W.-7 Sri Surendra Nath Rai/investigating officer of the case is being appended herewith and marked as Annexure No. 3, to this petition.

9. That on 21.10.2024, an application was filed by petitioner before the trial court, that the police in order to suppress the public outrage, have accused the petitioner and other co accused in the case by showing fake recovery of stolen Idol. Whereas the Idol recovered by police in the matter is ancient Idol or not can be known only by conducting carbon dating test of the recovered Idol. The copy of application dated 21.10.2024 filed by petitioner before trial court, is being appended herewith and marked as Annexure No.4 to this petition.

10. That on 28.10.2024, the application filed by petitioner with the prayer to conduct an expert examination for carbon dating of the recovered Idol has been rejected by the learned trial court with the observation that the evidence of prosecution has been completed and the file is fixed for statement of accused under section 313 Cr.P.C. hence application filed by petitioner is not maintainable whereas application under Section 311 Cr.P.C. can be filed at any stage of trial, even before delivery of final judgment, hence order passed by learned trial court is against the objects of the provision of 311 Cr.P.C."

5. The trial Court upon due consideration of the facts of the case rejected the application under Section 311 Cr.P.C. filed by the applicant. The order dated

28.10.2024 is extracted herein-under:- -3- "(cid:27)्ቔावली (cid:27)ेश हुई। (cid:27)ु(cid:18)ारा गया। अभिभयु्ሹगण जरिरये अधि0व्ሹा उ(cid:27)ቝኌस््ቕत। अभिभयु्ሹगण जय(cid:27)ूजन शमा(cid:14) आकिद (cid:18)ी ओर से ्ቚा्ቕ(cid:14)ना-(cid:27)्ቔ अन्तग(cid:14)त 0ारा 348 बी०एन०एस०एस०/311 द०्ቚ०सं० किदनाकि(cid:18)त 21.10.2024 ्ቚस्तुत (cid:18)र(cid:18)े (cid:18)चन कि(cid:18)या गया है कि(cid:18) ्ቚस्तुत मामले में (cid:18)भि्ቕत चोरी (cid:18)ी मूቔኌत जो बरामद (cid:18)ी गयी है यह असली मूቔኌत नहीं है। अतएव उ्ሹ बरामदशुदा मूቔኌत (cid:18)ी (cid:18)ाब(cid:14)न डेिሡ&ग (cid:18)े लिलए किवशेष्ሺ (cid:27)री्ቌण (cid:18)राये जाने हेतु आदेश (cid:27)ारिरत (cid:18)रने (cid:18)ी (cid:18)ृ(cid:27)ा (cid:18)ी जाये। सुना त्ቕा (cid:27)्ቔावली (cid:18)ा अवलो(cid:18)न कि(cid:18)या। (cid:27)्ቔावली (cid:18)े अवलो(cid:18)न से किवकिदत है कि(cid:18) ्ቚ्቞गत मामले में अभिभयोजन (cid:27)्ቌ (cid:18)ा साቌኚय (cid:27)ूण(cid:14) हो चु(cid:18)ा है त्ቕा (cid:27)्ቔावली अभिभयु्ሹगण (cid:18)े बयान अन्तग(cid:14)त 0ारा 313 द०्ቚ०सं० हेतु किनयत है। मामले में अभिभयु्ሹगण (cid:18)ी ओर से बचावसाቌኚय ्ቚस्तुत (cid:18)रने (cid:18)ा अवसर शेष है। इस स्तर (cid:27)र ्ቚ्቞गत ्ቚा्ቕ(cid:14)ना-(cid:27)्ቔ (cid:27)ोषणीय नहीं है। अतः ्ቚा्ቕ(cid:14)ना-(cid:27)्ቔ किदनाकि(cid:18)त 21.10.2024 किनरस्त कि(cid:18)या जाता है। (cid:27)्ቔावली बयान अन्तग(cid:14)त 0ारा 313 द०्ቚ०सं० किदनां(cid:18) 25.11.2024 (cid:18)ो (cid:27)ेश हो।"

7. In the aforesaid background of the case, present application has been filed. Learned counsel for the applicant says that as per settled principle of law the application ought to have been allowed by the trial Court and the order impugned is against the principle settled in this regard as also the observations made by the Hon'ble Apex Court in regard to expression 'Fair Trial'. As such, interference of this Court is required in the matter.

8. Learned AGA opposed the present application. He stated that the application under Section 311 Cr.P.C. was moved with sole intention to delay the trial, which is impermissible and in the circumstances of the case, the application has rightly been rejected by the trial court. Prayer is to affirm the impugned order and dismiss the application.

9. Considered the submissions advanced by the learned counsel for the parties and perused the record including the reasoning given by the trial Court in impugned order dated 28.10.2024 for rejecting the application under Section 311 Cr.P.C filed by the accused.

10. In the instant case an application under Section 311 Cr.P.C. was moved by the defence with a prayer to the effect that an expert report be sought regarding age of recovered 'Idol' by using carbon dating method.

11. Taking note of the prayer sought, quoted in para 3 of this judgment, this Curt took note of Section 311 Cr.P.C. and the principles related to power of the trial Court under Section 311 Cr.P.C. settled by the Hon'ble Apex Court in the case(s) of Mohd. Khalid Versus State of West Bengal, (2002) 7 SCC 334; Hanuman Prasad (Supra), Natasha Singh vs. CBI, (2013) 5 SCC 741:(2013) 4 SCC (Cri) 828:2013 SCC OnLine SC 444; Rajaram Prasad Yadav vs. State of -4- Bihar and another, AIR 2013 SC 3081; State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402; State of Haryana vs. Ram Mehar and others, (2016) 8 SCC 762; Swapan Kumar Chatterjee vs. Central Bureau of Investigation, (2019) 14 SCC 328; Varsha Garg vs. State of Madhya Pradesh and Others, 2022 SCC OnLine SC 986 and also by this Court in Application under Section 482 Cr.P.C. No. 274 of 2022 (Ram Nayak Singh vs. State of U.P. & Another).

12. From the language of Section 311 Cr.P.C. and the observation made by the Hon'ble Apex Court in the judgments, referred above, it is apparent in exercise of power of under Section 311 Cr.P.C. the Court has plenary power to summon any person at any stage of the proceeding as a witness and this power includes recall and re-execution of any person who has already been examined. The power under Section 311 Cr.P.C. can be invoked either by prosecution or accused or by the Court itself.

13. Upon due consideration of aforesaid, this Court does not find any illegality in the impugned order dated 28.10.2024. It is for the reason that to the view of this Court, the prayer sought, quoted in para 3 of this judgment, in the application preferred by the applicant could not be accede in exercise of power under Section 311 Cr.P.C.

14. The instant application is hereby rejected. Costs made easy. Order Date :- 06.02.2025 Anand ANAND KUMAR SRIVASTAVA High Court of Judicature at Allahabad, Lucknow Bench

Heard Shri J.P. Shukla, learned counsel for the applicant and learned AGA for the State..

2. The present application has been filed for the following main reliefs:- Court/Chief "a. quash the impugned order dated 28.10.2024, passed by learned rejecting Trial applicationdated 21.10.2024, contained as Annexure No.1 to this petition. Magistrate Ayodhya, Judicial b. direct the trial court to conduct an expert examination for carbon dating of the alleged recovered idol to prove its antiquity for defence in trial in the interest of justice."

3. The present application has been filed by the applicant challenging the order dated 28.10.2024, passed by learned Chief Judicial Magistrate, Ayodhya (in short 'trial court') on an application preferred by the accused/applicant under Section 311 Cr.P.C. seeking following relief: " अतः ्ቦीमान जी से ्ቚा्ቕ(cid:14)ना है कि(cid:18)न(cid:18)ली बरामद मूቔኌत माता देव(cid:18)रली स््ቕाकि(cid:27)त मंकिदर (cid:27)रिरसर एवं सनातनी मूቔኌत भगवान राम व भगवान किवष्णू जी स््ቕाकि(cid:27)त मंकिदर (cid:27)रिरसर (cid:18)ी (cid:18)ालगणना/ लिलए किवशेष्ሺता ्ቚा्቎ किवभाग से वै्ሺाकिन(cid:18) (cid:27)रिर्ቌण (cid:18)राया जाने (cid:18)े लिलए जिजलाधि0(cid:18)ारी महेदय एवं (cid:27)ुरातत्व किवभाग (cid:18)ो आदेश देने (cid:18)ी (cid:18)ृ (cid:27)ा (cid:18)ी जावे।" (cid:18)ाब(cid:14)न डेिሡ&ग (cid:18)राने (cid:18)े

4. Brief facts of the case have been narrated in paragraphs no.5 to 10 of the instant application, which are extracted hereunder:- "5. That the petitioner is an under trial accused in the matter in which an occurrence is alleged to have taken palace on 21.09.2012, at night and the first information report was lodged on 22.09.2012 vide Case Crime No.3262/2012, U/s- 457, 380, IPC, Police Station Kotwali Nagar, District Ayodhya. The photocopy as well as type copy of First Information Report dated 22.09.2012, lodged at Case -2- Crime No. 3262/2012, is being appended herewith and marked as Annexure No.2 to this petition.

6. That petitioner was not named in the alleged first information report and during the course of investigation, investigating officer falsely implicated petitioner in the matter by showing fake recovery of fake idol, other than original antique idol, which was not original and declaring it to be the original antique idol only on the consent of priest of temple, while it was not tested that the recovered stolen idol was the antique idol or not.

7. That thereafter charge sheet has been filed in the matter in the tainted manner without going into root of the matter and petitioner and other co accused have been put for trial in Case Crime No. 3262/2012, U/s-457, 380, 411 IPC, Police Station Kotwali Nagar, District Ayodhya, vide Criminal Case No. 7921/2012

8. That prosecution witnesses has been examined and on 29.10.2018, P.W.-7 Sri Surendra Nath Rai/investigating officer of the case was examined on oath and he was also cross examined on behalf of petitioner and in his cross examination he stated that regarding testing of the antiquity of the stolen idol, no test/examination of carbon dating was conducted by him that recovered stolen idol was the same one or not. P.W.7/Investigating officer of the matter has admitted in his cross examination that no effort was made by him to prove the antiquity of the stolen idol and the fake recovered idol. The photo copy as well as type copy of statement in chief of P.W.-7 Sri Surendra Nath Rai/investigating officer of the case is being appended herewith and marked as Annexure No. 3, to this petition.

9. That on 21.10.2024, an application was filed by petitioner before the trial court, that the police in order to suppress the public outrage, have accused the petitioner and other co accused in the case by showing fake recovery of stolen Idol. Whereas the Idol recovered by police in the matter is ancient Idol or not can be known only by conducting carbon dating test of the recovered Idol. The copy of application dated 21.10.2024 filed by petitioner before trial court, is being appended herewith and marked as Annexure No.4 to this petition.

10. That on 28.10.2024, the application filed by petitioner with the prayer to conduct an expert examination for carbon dating of the recovered Idol has been rejected by the learned trial court with the observation that the evidence of prosecution has been completed and the file is fixed for statement of accused under section 313 Cr.P.C. hence application filed by petitioner is not maintainable whereas application under Section 311 Cr.P.C. can be filed at any stage of trial, even before delivery of final judgment, hence order passed by learned trial court is against the objects of the provision of 311 Cr.P.C."

5. The trial Court upon due consideration of the facts of the case rejected the application under Section 311 Cr.P.C. filed by the applicant. The order dated

28.10.2024 is extracted herein-under:- -3- "(cid:27)्ቔावली (cid:27)ेश हुई। (cid:27)ु(cid:18)ारा गया। अभिभयु्ሹगण जरिरये अधि0व्ሹा उ(cid:27)ቝኌस््ቕत। अभिभयु्ሹगण जय(cid:27)ूजन शमा(cid:14) आकिद (cid:18)ी ओर से ्ቚा्ቕ(cid:14)ना-(cid:27)्ቔ अन्तग(cid:14)त 0ारा 348 बी०एन०एस०एस०/311 द०्ቚ०सं० किदनाकि(cid:18)त 21.10.2024 ्ቚस्तुत (cid:18)र(cid:18)े (cid:18)चन कि(cid:18)या गया है कि(cid:18) ्ቚस्तुत मामले में (cid:18)भि्ቕत चोरी (cid:18)ी मूቔኌत जो बरामद (cid:18)ी गयी है यह असली मूቔኌत नहीं है। अतएव उ्ሹ बरामदशुदा मूቔኌत (cid:18)ी (cid:18)ाब(cid:14)न डेिሡ&ग (cid:18)े लिलए किवशेष्ሺ (cid:27)री्ቌण (cid:18)राये जाने हेतु आदेश (cid:27)ारिरत (cid:18)रने (cid:18)ी (cid:18)ृ(cid:27)ा (cid:18)ी जाये। सुना त्ቕा (cid:27)्ቔावली (cid:18)ा अवलो(cid:18)न कि(cid:18)या। (cid:27)्ቔावली (cid:18)े अवलो(cid:18)न से किवकिदत है कि(cid:18) ्ቚ्቞गत मामले में अभिभयोजन (cid:27)्ቌ (cid:18)ा साቌኚय (cid:27)ूण(cid:14) हो चु(cid:18)ा है त्ቕा (cid:27)्ቔावली अभिभयु्ሹगण (cid:18)े बयान अन्तग(cid:14)त 0ारा 313 द०्ቚ०सं० हेतु किनयत है। मामले में अभिभयु्ሹगण (cid:18)ी ओर से बचावसाቌኚय ्ቚस्तुत (cid:18)रने (cid:18)ा अवसर शेष है। इस स्तर (cid:27)र ्ቚ्቞गत ्ቚा्ቕ(cid:14)ना-(cid:27)्ቔ (cid:27)ोषणीय नहीं है। अतः ्ቚा्ቕ(cid:14)ना-(cid:27)्ቔ किदनाकि(cid:18)त 21.10.2024 किनरस्त कि(cid:18)या जाता है। (cid:27)्ቔावली बयान अन्तग(cid:14)त 0ारा 313 द०्ቚ०सं० किदनां(cid:18) 25.11.2024 (cid:18)ो (cid:27)ेश हो।"

7. In the aforesaid background of the case, present application has been filed. Learned counsel for the applicant says that as per settled principle of law the application ought to have been allowed by the trial Court and the order impugned is against the principle settled in this regard as also the observations made by the Hon'ble Apex Court in regard to expression 'Fair Trial'. As such, interference of this Court is required in the matter.

8. Learned AGA opposed the present application. He stated that the application under Section 311 Cr.P.C. was moved with sole intention to delay the trial, which is impermissible and in the circumstances of the case, the application has rightly been rejected by the trial court. Prayer is to affirm the impugned order and dismiss the application.

9. Considered the submissions advanced by the learned counsel for the parties and perused the record including the reasoning given by the trial Court in impugned order dated 28.10.2024 for rejecting the application under Section 311 Cr.P.C filed by the accused.

10. In the instant case an application under Section 311 Cr.P.C. was moved by the defence with a prayer to the effect that an expert report be sought regarding age of recovered 'Idol' by using carbon dating method.

11. Taking note of the prayer sought, quoted in para 3 of this judgment, this Curt took note of Section 311 Cr.P.C. and the principles related to power of the trial Court under Section 311 Cr.P.C. settled by the Hon'ble Apex Court in the case(s) of Mohd. Khalid Versus State of West Bengal, (2002) 7 SCC 334; Hanuman Prasad (Supra), Natasha Singh vs. CBI, (2013) 5 SCC 741:(2013) 4 SCC (Cri) 828:2013 SCC OnLine SC 444; Rajaram Prasad Yadav vs. State of -4- Bihar and another, AIR 2013 SC 3081; State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402; State of Haryana vs. Ram Mehar and others, (2016) 8 SCC 762; Swapan Kumar Chatterjee vs. Central Bureau of Investigation, (2019) 14 SCC 328; Varsha Garg vs. State of Madhya Pradesh and Others, 2022 SCC OnLine SC 986 and also by this Court in Application under Section 482 Cr.P.C. No. 274 of 2022 (Ram Nayak Singh vs. State of U.P. & Another).

12. From the language of Section 311 Cr.P.C. and the observation made by the Hon'ble Apex Court in the judgments, referred above, it is apparent in exercise of power of under Section 311 Cr.P.C. the Court has plenary power to summon any person at any stage of the proceeding as a witness and this power includes recall and re-execution of any person who has already been examined. The power under Section 311 Cr.P.C. can be invoked either by prosecution or accused or by the Court itself.

13. Upon due consideration of aforesaid, this Court does not find any illegality in the impugned order dated 28.10.2024. It is for the reason that to the view of this Court, the prayer sought, quoted in para 3 of this judgment, in the application preferred by the applicant could not be accede in exercise of power under Section 311 Cr.P.C.

14. The instant application is hereby rejected. Costs made easy. Order Date :- 06.02.2025 Anand ANAND KUMAR SRIVASTAVA High Court of Judicature at Allahabad, Lucknow Bench