High Court · 2025

Revisionist :- Ashutosh Pathak Opposite Party :- State Of U.P. Thru. Prin. Secy. Deptt. Of Home, Lko And Another Counsel for Revisionist :- Sri Shailendra Srivastava,Vijyant Nigam Counsel for Opposite Party :- G.A. Hon'ble Alok Mathur,J.

1. Heard Sri Shailendra Srivastava, learned counsel for the revisionist, learned A.G.A. on behalf of the State and Sri Arun Sinha on behalf of respondent No.2.

2. By means of the present application under Section 438 of BNSS read with Setion 442 of BNSS, the revisionist has assailed the order dated 3.3.2025 passd by Additinal Chief Judicial Magistrate-IV, Room No.20, Sultanpur in Criminal Case No.7940 of 2024 (State Vs. Ashutosh Pathak and others)

3. It has been submitted on behalf of the revisionist that an FIR was lodged in Case Crime No.19/2018 under Sections 498A, 323, 504, 506 IPC and Section 3/4 of Dowry Prohibition Act, police station Mahila Thana, Gauriganj, District Amethi, implicating the applicant (husband of the informant) and three other persons namely Smt. Neeelam Pathak (Mother in -law), Sri Sheetala Pathak (Father in law) and Sri Shashank Pathak (brother -in law). After investigation, charge sheet No.32 of 2018 was filed against the applicant and charge sheet No.32-A of 2018 was filed against Shashank Pathak and Neelam Pathak and the trial court took cognizance and summoned the accused.Thereafter, the trial court framed charges against the accused under Sections 498A, 323, 504 and 506 IPC and Section 3/4 of Dowry Prohibition Act which were read over to the accused and upon denial, the accused were put to trial.

4. Charge sheet NO.32 of 2018 indicates 12 witnesses including Vinay Kumar Pathak and charge sheet No.32A of 2018 indicates 16 witnesses including Vinay Kumar Pathak and Kanak Lata Singh but the prosecution to support is case produced three witnesses of facts namely Shikha Pathak (P.W.1), Savita Pandey(P.W.-2) and Ashok Kumar Pandey (P.W.-3). The statements of formal witnesses of the prosecution were also recorded.

5. After completion of evidence of prosecution, date was fixed for recording of statement of accused in terms of Section 313 Cr.P.C. and the statement of the accused-applicant was also recorded on 1.5.2023 as appears from the impugned order dated 18.5.2024.

6. It is further submitted that after recording the statements of the accused an application under Section 311 of Cr.P.C. was made by the revisionist for summoning two witnesses, namely Vinay Kumar Pathak and Kanak Lata Singh. The said application was allowed and trial court on 18.5.2024 permitted the defence to examine Vinay Kumar Pathak on 20.5.2024.

7. It seems that despite number of dates being fixed in the said case, the said witness was not examined by the defence and finally by means of order dated 6.6.2024 the opportunity to examine the said witness was closed.

8. The said order was assailed before this Court by filing application under Section 482 Cr.P.C. bearing No.5718 of 2024 after a detailed examination and hearing learned counsel for the revisionist was dismissed vide judgment and order dated 3.3.2024.

9. The main ground for rejection of the said petition is that the Court was of the view that application under Section 311 IPC was moved by the revisionist merely to delay the trial and specially considering that there is already existence of the order of this Court dated 25.7.2022 for expeditious disposal of the trial and the Court was of the considered opinion that despite repeated opportunities having been granted the defence has failed to examine the said witness and consequently the Court did not find any merit in challenge to the impugned order dated 6.6.2024 and dismissed the petition.

10. The revisionist being aggrieved by the order of this Court had filed Special Leave to Appeal (Criminal) No.10852 of 2024 which was also dismissed on 4.2.2025. It is after dismissal of the said Special Leave to Appeal that another application under Section 311 Cr.P.C. was filed on 11.2.2025 seeking to summon Sri Vinay Kumar Pathak again as a defence witness. This application has been rejected by means of the impugned order dated 3.3.2025 which has been assailed in the present revision.

11. While rejecting the application of the revisionist, Additional Chief Judicial Magistrate, Sultanpur has narrated the entire sequence of events as already discussed hereinabove. Taking into account the order of High Court dated 3.7.2024 as well as order of Supreme Court dated 4.2.2025 the court was of the view that the said issue has already been concluded by the Supreme Court and it has been further recorded that every effort of the revisionist is only to delay the trial and in the aforesaid circumstances rejected the application.

12. Learned counsel for the revisionist does not dispute the aforesaid facts specially the fact that on previous occasion the application under Section 311 Cr.P.C. for summoning Vinay Kumar Pathak as defence witness has already been rejected which order has been upheld by the Supreme Court and again by means of another application the same relief has been sought.

13. We see no reason to take a different view from the view already taken by this Court in 482 Cr.P.C. petition as well as by the Supreme Court in this order dated 4.2.2025. Accordingly, we do not find any infirmity in the order dated 3.3.2025 rejecting the application of the revisionist under Section 311 of Cr.P.C.

14. Learned counsel for the revisionist has further submitted that while rejecting the application under Section 311 Cr.P.C. the case has been listed for final argument. He submits that no opportunity has been granted to him to lead evidence of defence witness and accordingly the impugned order is illegal and arbitrary in as much as it does not give opportunity to the accused to lead his defence

15. In this regard it may be relevant to refer to the relevant provisions from the judgment of the coordinate bench of this Court in Application under Section 482 Cr.PC. No.5718 of 2024 whee this Court has dealt with the matter as to whether Vinay Kumar Pathak would be considered to be defence witness or prosecution witness and after due consideration of law the Court was of the considered opinion that application of the revisionist under Section 311 Cr.P.C. was a tool to delay the trial and accordingly prima facie found no force in the request made by the revisionist. In the instant 482 Cr.P.C. petition the petitioner took a ground that he has not been able to lead any witness evidence and be permitted to examine Sri Vinay Kumar Pathak and for this reason he has moved application under Section 313 Cr.P.C.

16. A perusal of the order sheet indicates that on each date the matter was got adjourned at the behest of the defence and even if when on their request Vinay Pathak was present in the court they failed to examined him and it is for this reason that led the trial court to close the opportunity with regard to the revisionist.

17. It is further submitted that after filing of the present petition an application has been filed giving list of witnesses. Needless to say that we would not like to take cognizance on that application which has been preferred by the revisionist after filing the present revision in as much as that does not form a ground for challenging in the present revision. Whenever any application is moved by the accused before the trial court it would be looked into in accordance with law and no order deserves to be passed in the present revision.

18. In view of the above, we do not find any ground for interference in the revision.

19. The revision is accordingly dismissed. (Alok Mathur, J.) Order Date :- 2.4.2025 RKM. RAKESH KUMAR MAURYA High Court of Judicature at Allahabad, Lucknow Bench

Revisionist :- Ashutosh Pathak Opposite Party :- State Of U.P. Thru. Prin. Secy. Deptt. Of Home, Lko And Another Counsel for Revisionist :- Sri Shailendra Srivastava,Vijyant Nigam Counsel for Opposite Party :- G.A. Hon'ble Alok Mathur,J.

1. Heard Sri Shailendra Srivastava, learned counsel for the revisionist, learned A.G.A. on behalf of the State and Sri Arun Sinha on behalf of respondent No.2.

2. By means of the present application under Section 438 of BNSS read with Setion 442 of BNSS, the revisionist has assailed the order dated 3.3.2025 passd by Additinal Chief Judicial Magistrate-IV, Room No.20, Sultanpur in Criminal Case No.7940 of 2024 (State Vs. Ashutosh Pathak and others)

3. It has been submitted on behalf of the revisionist that an FIR was lodged in Case Crime No.19/2018 under Sections 498A, 323, 504, 506 IPC and Section 3/4 of Dowry Prohibition Act, police station Mahila Thana, Gauriganj, District Amethi, implicating the applicant (husband of the informant) and three other persons namely Smt. Neeelam Pathak (Mother in -law), Sri Sheetala Pathak (Father in law) and Sri Shashank Pathak (brother -in law). After investigation, charge sheet No.32 of 2018 was filed against the applicant and charge sheet No.32-A of 2018 was filed against Shashank Pathak and Neelam Pathak and the trial court took cognizance and summoned the accused.Thereafter, the trial court framed charges against the accused under Sections 498A, 323, 504 and 506 IPC and Section 3/4 of Dowry Prohibition Act which were read over to the accused and upon denial, the accused were put to trial.

4. Charge sheet NO.32 of 2018 indicates 12 witnesses including Vinay Kumar Pathak and charge sheet No.32A of 2018 indicates 16 witnesses including Vinay Kumar Pathak and Kanak Lata Singh but the prosecution to support is case produced three witnesses of facts namely Shikha Pathak (P.W.1), Savita Pandey(P.W.-2) and Ashok Kumar Pandey (P.W.-3). The statements of formal witnesses of the prosecution were also recorded.

5. After completion of evidence of prosecution, date was fixed for recording of statement of accused in terms of Section 313 Cr.P.C. and the statement of the accused-applicant was also recorded on 1.5.2023 as appears from the impugned order dated 18.5.2024.

6. It is further submitted that after recording the statements of the accused an application under Section 311 of Cr.P.C. was made by the revisionist for summoning two witnesses, namely Vinay Kumar Pathak and Kanak Lata Singh. The said application was allowed and trial court on 18.5.2024 permitted the defence to examine Vinay Kumar Pathak on 20.5.2024.

7. It seems that despite number of dates being fixed in the said case, the said witness was not examined by the defence and finally by means of order dated 6.6.2024 the opportunity to examine the said witness was closed.

8. The said order was assailed before this Court by filing application under Section 482 Cr.P.C. bearing No.5718 of 2024 after a detailed examination and hearing learned counsel for the revisionist was dismissed vide judgment and order dated 3.3.2024.

9. The main ground for rejection of the said petition is that the Court was of the view that application under Section 311 IPC was moved by the revisionist merely to delay the trial and specially considering that there is already existence of the order of this Court dated 25.7.2022 for expeditious disposal of the trial and the Court was of the considered opinion that despite repeated opportunities having been granted the defence has failed to examine the said witness and consequently the Court did not find any merit in challenge to the impugned order dated 6.6.2024 and dismissed the petition.

10. The revisionist being aggrieved by the order of this Court had filed Special Leave to Appeal (Criminal) No.10852 of 2024 which was also dismissed on 4.2.2025. It is after dismissal of the said Special Leave to Appeal that another application under Section 311 Cr.P.C. was filed on 11.2.2025 seeking to summon Sri Vinay Kumar Pathak again as a defence witness. This application has been rejected by means of the impugned order dated 3.3.2025 which has been assailed in the present revision.

11. While rejecting the application of the revisionist, Additional Chief Judicial Magistrate, Sultanpur has narrated the entire sequence of events as already discussed hereinabove. Taking into account the order of High Court dated 3.7.2024 as well as order of Supreme Court dated 4.2.2025 the court was of the view that the said issue has already been concluded by the Supreme Court and it has been further recorded that every effort of the revisionist is only to delay the trial and in the aforesaid circumstances rejected the application.

12. Learned counsel for the revisionist does not dispute the aforesaid facts specially the fact that on previous occasion the application under Section 311 Cr.P.C. for summoning Vinay Kumar Pathak as defence witness has already been rejected which order has been upheld by the Supreme Court and again by means of another application the same relief has been sought.

13. We see no reason to take a different view from the view already taken by this Court in 482 Cr.P.C. petition as well as by the Supreme Court in this order dated 4.2.2025. Accordingly, we do not find any infirmity in the order dated 3.3.2025 rejecting the application of the revisionist under Section 311 of Cr.P.C.

14. Learned counsel for the revisionist has further submitted that while rejecting the application under Section 311 Cr.P.C. the case has been listed for final argument. He submits that no opportunity has been granted to him to lead evidence of defence witness and accordingly the impugned order is illegal and arbitrary in as much as it does not give opportunity to the accused to lead his defence

15. In this regard it may be relevant to refer to the relevant provisions from the judgment of the coordinate bench of this Court in Application under Section 482 Cr.PC. No.5718 of 2024 whee this Court has dealt with the matter as to whether Vinay Kumar Pathak would be considered to be defence witness or prosecution witness and after due consideration of law the Court was of the considered opinion that application of the revisionist under Section 311 Cr.P.C. was a tool to delay the trial and accordingly prima facie found no force in the request made by the revisionist. In the instant 482 Cr.P.C. petition the petitioner took a ground that he has not been able to lead any witness evidence and be permitted to examine Sri Vinay Kumar Pathak and for this reason he has moved application under Section 313 Cr.P.C.

16. A perusal of the order sheet indicates that on each date the matter was got adjourned at the behest of the defence and even if when on their request Vinay Pathak was present in the court they failed to examined him and it is for this reason that led the trial court to close the opportunity with regard to the revisionist.

17. It is further submitted that after filing of the present petition an application has been filed giving list of witnesses. Needless to say that we would not like to take cognizance on that application which has been preferred by the revisionist after filing the present revision in as much as that does not form a ground for challenging in the present revision. Whenever any application is moved by the accused before the trial court it would be looked into in accordance with law and no order deserves to be passed in the present revision.

18. In view of the above, we do not find any ground for interference in the revision.

19. The revision is accordingly dismissed. (Alok Mathur, J.) Order Date :- 2.4.2025 RKM. RAKESH KUMAR MAURYA High Court of Judicature at Allahabad, Lucknow Bench