Allahabad High Court
Rahul Verma vs Central Bureau Of Investigation ... on 8 April, 2022
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 13
Case :- APPLICATION U/S 482 No. - 442 of 2022
Applicant :- Rahul Verma
Opposite Party :- Central Bureau Of Investigation Lko And Another
Counsel for Applicant :- Pranshu Agrawal,Chandan Srivastava
Counsel for Opposite Party :- Anurag Kumar Singh
Hon'ble Karunesh Singh Pawar,J.
1. The petition has been filed under Section 482 CrPC for quashing order dated 2.2.2021, passed by special Judge, CBI, Court No.2, Lucknow in Sessions Trial No.385 of 2012 C.B.I. versus Rahul Verma, arising out of Crime No.14(S)/2010 under sections 302, 201, 364 I.P.C., P.S. C.B.I./S.C.B., Lucknow whereby the application filed under Section 233(3) CrPC has been rejected.
2. Heard Mr. Nandit Srivastava, learned Senior Advocate assisted by Mr. Chandan Srivastava, learned counsel for the petitioner and Mr. Anurag Kumar Singh, learned counsel for C.B.I.
3. Learned counsel for the petitioner submits that P.W 35 M.A. Qazi who was investigating officer in Case Crime No. 137 of 2008, P.S. Mulganj, Kanpur and Crime No.842 of 2008, P.S. Kalyanpur, Kanpur, appeared on 26.11.2018. Thereafter, the case was fixed for 29.11.2018 for his cross-examination. On that date, adjournment was sought by C.B.I. Next date fixed was 7.12.2018. On that date also, adjournment was sought by the C.B.I.. Part of cross-examination was done on the next date, i.e. on 17.12.2018 by the accused applicant. The next date was fixed on 20.12.2018 on which date, again adjournment was sought by the C.B.I. on behalf of P.W.35.
On 24.12.2018, P.W.35 appeared before the Court. It was a last working day before winter vacation. Part cross-examination was conducted on behalf of the accused applicant, however, the counsel was held up in several trials on that day. The matter was fixed at 2.00p.m. and thereafter at 3.05p.m. and opportunity to cross examine P.W.35 was closed by the trial Court.
It is submitted by petitioner's counsel that after closure of the prosecution evidence, statement of the accused persons under section 313 CrPC were recorded on 29.2.2020. Thereafter, the accused entered into his defence and filed an application for issue of the process for attendance of P.W.35 for the purpose of examining under section 233(3) CrPC.
It is submitted that it is a case of circumstantial evidence. Skeletons were found from a bag outside the campus of I.I.T., Kanpur. P.W.35 who was the investigating officer after conducting thorough investigation at parcha No.69 dated 3.8.2010 has mentioned in the case diary that during investigation, no evidence has been collected against the present petitioner so as to carry on further investigation. He has conducted detailed investigation from 15.9.2009 to 4.3.2010 and again from 16.6.2010 to 9.10.2010, on which date, case was transferred to C.B.I.. Meticulous details regarding statement recorded by P.W.35 as well as relevant case diary and dates are mentioned in para 17 of the petition.
It is submitted by the petitioner's counsel that on account of his personal difficulty after lunch on 24.12.2018, the cross-examination in one day and that too, on the last working day could not be concluded by him whereas P.W.35 remained absent on a number of dates on previous occasions as also the fact that his application under Section 311 CrPC has been rejected, therefore, to secure the ends of justice and to prove his innocence, the very relevant and important witness P.W.35 who is the investigating officer of the case is liable to be examined before the trial Court.
In support of his case, learned counsel has relied on State versus Masasingh Chandasingh AIR 1959 Bombay 368
Learned counsel undertakes that he may be given only one day time and he is prepared to pay cost to P.W.35 who has since retired.
It is lastly submitted that the petitioner has a brilliant academic record. He is an I.I.T. graduate and has completed his I.I.M.
4. Learned counsel for C.B.I. has opposed the petition. It is submitted that the opportunity to cross-examination was afforded to the petitioner, however, he failed to cross-examine on 24.12.2018 and therefore, remaining cross examination has rightly been closed.
He further submits that the application under section 311 CrPC given by the petitioner has also been rightly rejected on merit by the trial court. It is submitted that once an accused has been summoned and examined and cross examination has been conducted by the defence at the stage of prosecution evidence, there is no need for summoning the witness again at the stage of defence evidence as it will only linger on the trial. Learned counsel has relied on a judgment of Madhya Pradesh High Court in Pappu alias Chandra Pravesh Tiwari versus State of Madhya Pradesh 2013 CRI.L.J. 3707.
5. On due consideration to the arguments advanced by parties' counsel, perusal of the record and the application moved on behalf of the petitioner before the trial Court for summoning P.W.35, this court finds that P.W.35 has relied on statements of as many as 25 witnesses including those who have changed their stand during investigation by C.B.I. and proved various documents in his examination before the Court, as averred in para 3 of rejoinder reply to the objections filed by the C.B.I. dated 25.1.2021. The petitioner was given opportunity to cross-examine this witness on 17.12.2018 and the opportunity was closed on 24.12.2018. It was last working day. On these two dates, although 12 page cross-examination was done on behalf of the petitioner but owing to the old age of P.W.35 and his delayed answer, cross examination could not be concluded.
6. A perusal of the order dated 2.2.2021 reveals that trial court has rejected application No. B-36 filed under Section 233(3) CrPC primarily on the ground that opportunity to cross-examine P.W.35 Masoor Ahmad Qazi was given to the petitioner which was also availed by him to some extent. However, the remaining cross-examination could not be done/concluded by him in spite of giving opportunity and therefore, the opportunity to cross-examination was closed. It is further observed by the learned trial court that an application No.29-B under Section 311 CrPC was filed by the accused applicant which was rejected on 5.4.2019 on merit. Against rejection order dated 5.4.2019, no revision etc was filed and therefore, that order became final.
Perusal of the impugned order further shows that the Court below in the present case while deciding the application has not given any finding that the application has been given by the petitioner only to cause delay in the trial which is a reason necessary to be recorded for declining the application as provided in Section 233(3) CrPC.
7. In view of what has been stated herein above and keeping in view the submission of the petitioner's counsel that only one opportunity be given to the petitioner to cross examine P.W.35 in peculiar facts and circumstances of this case and to secure the ends of justice, order dated 2.2.2021 is modified to the extent that the trial court shall summon P.W.35 for one date only and the petitioner shall be given an opportunity to cross-examine the said witness only for that date. P.W.35 shall remain present in the Court from 10.30a.m. on the date fixed by the trial Court.
In view of the undertaking given on behalf of the petitioner, the petitioner shall deposit cost of Rs.25,000/- within fifteen days from today before the trial court, which shall be released in favour of P.W.35 as and when he appears before the trial court on the date fixed by it.
8. The petition is disposed of accordingly.
Order Date :- 8.4.2022
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