Vijay Shankar Tiwari @ Dhunni ... vs State Of U.P. And Another
2017 Latest Caselaw 5374 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
AFR
 
Reserved 
 
Case:- APPLICATION U/S 482 No. - 18582 of 2017
 
Applicant:- Vijay Shankar Tiwari @ Dhunni Tiwari
 
Opposite Party:- State Of U.P. And Another
 
Counsel for Applicant:- Ankit Gaur
 
Counsel for Opposite Party:-G.A.,Jai Raj Singh Tomar
 

 
Hon'ble Mrs. Vijay Lakshmi,J.

The applicant, Vijay Shankar Tiwari @ Dhunni Tiwari, who is an accused in S.T. No.1415 of 2000 (State Vs. Vijay Shankar Tiwari @ Dhunni Tiwari and others), arising out of Case Crime No.455/1995, under Sections 307 and 302 I.P.C. Police Station-Govindnagar, District-Kanpur Nagar, pending in the Court of learned Additional District Judge-I, Kanpur Nagar, by means of this application under Section 482 Cr.P.C. has invoked the inherent jurisdiction of this Court with prayer to quash the impugned order dated 15.5.2017 passed by the learned Additional Sessions Judge Court No.1, Kanpur Nagar in the aforesaid sessions trial, whereby the application moved by the accused-applicant under Section 311 Cr.P.C. requesting the Court to summon the injured witness Ram Kumar Singh, has been rejected.

Affidavits have been exchanged between the parties.

Heard learned counsel for both the parties. Perused the records.

Some background facts in brief are that an F.I.R. was lodged by the O.P. No.2, Rana Pratap Singh against the applicant and other co-accused persons mentioning therein that on 30.8.1995, when he along with his friend Chotey Singh was going to District Court with his brother-in-law Harish Chandra Singh and his friend Ram Kumar Singh, the applicant with his younger brother Bablu (co-accused), co-accused Ram Babu Yadav and an unknown accused person, came from behind and fired on the brother-in-law of the applicant Harish Chandra Singh, who died on the spot. His friend Ram Kumar Singh sustained fire arm injuries.

The case being triable by the court of sessions, it was committed by the learned Magistrate to the Sessions Court on 03.10.2000, where it was registered as S.T. No.1415 of 2000 and the trial proceeded. On 02.6.2004, charges under Section 307 and 302 I.P.C. were framed against the accused persons and thereafter the prosecution started producing its witnesses. On 13.7.2004, an application was moved by the prosecution to discharge the injured witness Ram Kumar Singh on the ground that he had colluded with the accused persons. The aforesaid application was allowed by the trial court after hearing learned A.D.G.C. and learned counsel for the accused persons, who did not make any objection.

As the accused persons were causing delay in trial proceedings, an application under Section 482 Cr.P.C. No.13801/2015 was moved by the complainant before this Court with prayer to expedite the trial and this Court, vide order dated 22.5.2015 disposed of the said application directing the trial court to decide the trial within a period of five months from the date of receipt of certified copy of the order. The certified copy of the aforesaid order was filed before the trial court on 16.6.2015 which was taken on record. After conclusion of the evidence of prosecution witnesses the date 09.10.2015 was fixed for recording of statement of accused persons under Section 313 Cr.P.C. However, due to absence of the accused persons, their statements could not be recorded.

A perusal of the certified copy of the order-sheet filed by O.P. No.2 with counter affidavit shows that thereafter 20.10.2015, 23.10.2015, 4.11.2015, 19.11.2015, 24.11.2015, 28.11.2015, 05.12.2015, 15.12.2015, 19.12.2015, 22.12.2015 and 07.1.2016 were fixed for recording of statements under Section 313 Cr.P.C. due to continuous absence of the applicant.

On 07.1.2016, an application under Section 311 Cr.P.C. was moved by the co-accused Ram Babu Yadav which was decided on 01.2.2016 and the learned trial court by a detailed order, rejected the aforesaid application and fixed the date 08.2.2016 for recording of statement of accused persons under Section 313 Cr.P.C. The order sheet shows that on 08.2.2016, the accused-applicant again absented himself, for several dates i.e. 12.2.2016, 18.2.2016, 22.2.2016. Hence, 25.2.2016 was fixed for recording of statements under Section 313 Cr.P.C. However, on 25.2.2016, the applicant instead of appearing before the court, moved an exemption application. The court rejected his exemption application and issued non bailable warrant against him. The order sheet further shows that thereafter 03.3.2016, 17.3.2016, 06.4.2016, 20.4.2016, 4.5.2016, 13.5.2016, 22.5.2016, 06.6.2016, 08.6.2016, 16.6.2016, 15.7.2016 and 01.8.2016 were fixed by the learned trial court, but due to absence of the accused-applicant, his statement under Section 313 Cr.P.C. could not be recorded. Once again, 06.8.2016 was fixed for recording of the statement of the accused-applicant under Section 313 Cr.P.C. The order sheet further shows that on 06.8.2016 too, his statement could not be recorded. Thereafter, the file was transferred to another Court.

On the next date fixed i.e. 06.9.2016, the statement of two co-accused persons Ram Babu and Ashwini Tiwari were recorded, but the statement of the applicant could not be recorded due to his absence. Ultimately, the statement of the applicant could be recorded on 01.10.2016 and the date was fixed for defence evidence. The accused persons, despite having ample time and opportunity did not produce any defence evidence, therefore, 07.12.2016 was fixed for hearing arguments. From 07.12.2016 to 23.3.2017 as many as 21 dates were fixed for hearing arguments, but due to several adjournment applications moved by the accused persons, the arguments could not be concluded. Ultimately, the trial court, on 25.3.2017 fixed 06.4.2017 for delivery of judgment.

On 06.4.2017, i.e. the date fixed for delivery of judgment, an adjournment application was again moved by the accused-applicant and it appears very strange, that the learned trial court, instead of delivering the judgment, allowed the aforesaid application and fixed the date for rehearing arguments.

Thereafter, 14.4.2017, 20.4.2017, 29.4.2017, 04.5.2017, 5.5.2017, 06.5.2017, 11.5.2017 and 12.5.2017 were fixed for hearing of remaining arguments. On 12.5.2017, the accused-applicant moved an application under Section 311 Cr.P.C. which was rejected by the impugned order dated 15.5.2017 and 19.5.2017 was fixed for hearing of remaining arguments.

The order sheet further shows that on 19.5.2017, once again, the applicant moved an adjournment application and the date 25.5.2017 was fixed. On 25.5.2017, adjournment application was again moved by the applicant, hence 30.5.2017 was fixed for hearing arguments and thereafter 15.6.2017 was fixed for hearing the arguments.

The aforesaid status of the trial court concerned clearly shows that despite a specific direction of this Court to conclude the trial within a period of five months without giving any unnecessary adjournments to either of the parties, the trial court, having the full knowledge of the aforesaid direction, has adjourned the case to various dates in a routine manner.

The aforesaid state of affairs is alarming. It is a matter of grave concern that the learned trial court has not paid any attention to the order of this Court dated 22.5.2015. Despite the fact, that earlier the case was already fixed for delivery of judgment, the trial court, instead of delivering the judgment, has given the chance to the accused-applicant to linger on the trial proceedings. The conduct of Presiding Officer raises a serious doubt on his working and clearly shows that either he/she is so careless and lackadaisical that he/she did not even bother to comply the order of this Court or may be he/she has given chance to the accused persons to delay the proceedings due to some extraneous considerations. Therefore, the officer concerned is liable to submit its explanation.

In the backdrop of the aforesaid facts, it is clearly evident that by means of the present application under Section 482 Cr.P.C. the accused-applicant has tried to linger on the proceedings further.

It is also noteworthy that an application under Section 311 Cr.P.C. was earlier moved by the co-accused Ram Babu Yadav with the same payer to summon the injured witness Ram Kumar who was discharged by the trial court on 13.7.2004 and that application under Section 311 Cr.P.C. was rejected by the learned trial court on 01.2.2016. The aforesaid order was never challenged by any of the accused persons before this Court and thus the said order has attained finality. Now, the second application with the same prayer by another co-accused (applicant) is nothing but an abuse of the process of the Court, which was rightly rejected by the learned trial court vide impugned order dated 15.5.2017.

The applicant, has challenged the legality and correctness of the aforesaid impugned order mainly on the ground that the learned trial court has rejected the application moved by the applicant under Section 311 Cr.P.C. in a mechanical manner only on the grounds that the injured witness has already been discharged vide order dated 13.7.2004, which order was never assailed by the accused persons, thus the same dispute cannot be agitated again by the co-accused persons.

Learned counsel for the applicant has contended that due to lack of legal knowledge and due to some ill advise, the order dated 13.7.2004 could not be assailed. For the same reason, the order dated 01.2.2016, could also not be challenged by the co-accused Ram Babu Yadav, who had earlier preferred the application under Section 311 Cr.P.C.

There does not appear any force in the aforesaid contention of the learned counsel for the applicant.

The law regarding the exercise of jurisdiction under Section 311 Cr.P.C. is well settled. The Hon'ble Apex Court in the case of Vijay Kumar Vs. State of U.P. and Anr, 2011 (3) Crimes 147 (SC) has laid down the law as under:

"It hardly needs to be emphasized that power under Section 311 should be exercised for the just decision of the case. The wide discretion conferred on the court to summon a witness must be exercised judicially, as wider the power, the greater is the necessity for application of the judicial mind. Whether to exercise the power or not would largely depend upon the facts and circumstances of each case. As is provided in the Section, power to summon any person as a witness can be exercised if the court forms an opinion that the examination of such a witness is essential for just decision of the case."

The Hon'ble Apex Court in the case of Ag Vs Shiv Kumar Yadav and Anr, 2016 (2) SCC 402, has observed as under:

"The power under Section 311 CrPC must be invoked by the court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right."

In view of the aforesaid facts and circumstances of the case, there does not appear any illegality or irregularity in the order impugned. The application is liable to be dismissed. However, in view of the fact that the applicant has already been successful in causing inordinate delay in the concerned sessions trial relating to an occurrence which had taken place 15 years ago and is causing more delay by means of the present application under Section 482 Cr.P.C, which is nothing but a glaring example of misuse of the process of court and the law, it is liable to be dismissed with heavy cost.

Accordingly, this application is dismissed with a cost of Rs.15,000/-. The amount of cost shall be deposited by the applicant within a period of one month in the accounts of High Court Legal Services Committee, Allahabad, which shall be paid to O.P. No.2 after his due identification.

Office is directed to call for explanation of the Officer concerned who has fixed dates in a routine manner in the trial despite the knowledge of specific direction of this Court through District Judge, Kanpur Nagar within two weeks and to place the explanation of Officer along with a copy of this judgment before the Hon'ble Administrative Judge.

Order Date :-12.10.2017

SB