Allahabad High Court
Ashwani Kumar (Mishra) vs State Of U.P. Thru. Prin. Secy. ... on 21 June, 2022
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 10
Case :- APPLICATION U/S 482 No. - 3831 of 2022
Applicant :- Ashwani Kumar (Mishra)
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Civil Secrtt. Lko And Another
Counsel for Applicant :- Tung Nath Tiwari,Sunil Kumar Srivastava
Counsel for Opposite Party :- G.A.
Hon'ble Pankaj Bhatia,J.
Heard learned counsel for the applicant, Sri S.N. Singh Gaherwar, Advocate who appears on behalf of the complainant and the learned AGA.
The present application has been filed challenging the order dated 10.06.2022 whereby the request of the applicant for summoning the witnesses as defense witnesses has been rejected on the ground of delay.
The submission of the counsel for the applicant is that the criminal trial was initiated in the year 1997. Subsequently on an application moved at the behest of the applicant on 19.02.2008 for declaring him as a juvenile and an order came to be passed on 12.01.2021 rejecting the said application. It is stated that after the application for declaring the applicant as juvenile was rejected on 12.01.2021, an application was filed initially by the applicant for summoning the witnesses named in the charge-sheet under section 311 Cr.P.C. which was not accepted.
The matter travelled before this Court by means of the application under section 482 Cr.P.C. No.3457 of 2022 wherein this court was of the view that it is for the prosecution to produce the witnesses or not to produce the witnesses and thus, no error was found by this Court in rejecting the application under section 311 Cr.P.C. After passing of the said judgment on 03.06.2022, the applicant appears to have filed an application seeking issuance of summons for producing two witnesses namely Naumi Lal and Dwarika as defense witnesses under section 243 Cr.P.C. The said application has been rejected mainly on the ground that the same has been filed after substantial delay.
The counsel for the applicant argues that the order impugned is liable to be set aside inasmuch as there was no delay on the part of the applicant as he had moved the application after the order dated 12.01.2021 came to be passed rejecting the application of the applicant for declaring him to be a juvenile.
The facts, as recorded above, are not disputed in between the parties, however, the counsel for the respondent submits that the applicant wants to delay the trial on one ground or the other and the trial which was initiated in the year 1997 has dragged since then on one pretext or the other.
Considering the submissions made at the bar and on examination of the impugned order, it is clear that the application has been rejected mainly on the ground of delay, however, the fact remains that for the period 19.02.2008 up to 12.01.2021 the proceedings were pending and lingered on account of an application being filed for declaring the applicant as juvenile and after the rejection of the said application, the applicant has filed the present application. I am of the prima-facie view that there was no delay in filing the application as contemplated under section 243 of the Cr.P.C. prohibiting the exercise of the power by the magistrate. Clearly the magistrate has erred in rejecting the said application.
Accordingly, the order dated 10.06.2022 is set aside. However, considering the fact that considerable delay has happened in the trial, it is directed that two witnesses as sought to be produced as defense witnesses namely Naumi Lal and Dwarika shall be summoned by the court below for giving their statements and thereafter the matter shall be proceeded and decided with all expedition. It is clarified that none of the parties shall be entitled to seek any unnecessary adjournments in the matter. The trial shall be concluded with all expedition preferably within a period of one year from today. In case the trial is not concluded within the period of one year as directed above, the court concerned shall submit its report to the High Court giving reasons for the delay by sending a report to the Senior Registrar of this Court
With the said observations, the application stands disposed off.
Order Date :- 21.6.2022
VNP/-
