Allahabad High Court
Rajesh Singh And 7 Others vs State Of U.P. Thru. Prin. Secy. ... on 21 November, 2022
Bench: Mohd. Faiz Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 12
Case :- APPLICATION U/S 482 No. - 8447 of 2022
Applicant :- Rajesh Singh And 7 Others
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another
Counsel for Applicant :- Naveen Kumar Pandey
Counsel for Opposite Party :- G.A.
Hon'ble Mohd. Faiz Alam Khan,J.
Heard Shri Naveen Kumar Pandey, learned counsel for the applicants as well as learned AGA for the State and perused the record.
The instant application under Section 482 Cr.P.C. has been moved by the accused/applicants- Rajesh Singh, Manoj Singh, Vinod Singh @ Guddey Singh, Sitaram Singh, Rajendra Singh, Shiv Shankar Singh, Chandra Bhan Singh and Indra Bhan Singh with the prayer to quash the order dated 11.10.2022 passed by learned Additional Sessions Judge, Court No.4, Gonda, in Session Trial No. 142/2003, (State Vs. Sanjay Singh and others), arising out of Case Crime No. 25/2002, under Sections 147, 148, 149, 307 IPC, Police Station Tarabganj, District Gonda, whereby the application moved by the applicants for compliance of Section 207 Cr.P.C. has not been complied in letter and spirit, in the interest of justice.
Learned counsel for the applicants while referring to the impugned order dated 11.10.2022, submits that the case diary of the case was not available before the trial court and in this regard an effort appears to have been made by the trial court for reconstruction of the same and the informant side appears to have filed some papers before the trial court which have been accepted by the trial court as the authenticated copy of the case diary and the copy of only those papers have been provided to the applicants.
It is vehemently submitted that the copy of the documents which have been provided to the applicants/ accused persons were reconstructed and it is not evident from the same as to on what date the statement of the prosecution witnesses was recorded by the Investigating Officer and it is evident that no serious effort has been made by the trial court for reconstruction of the case diary and without complying the provision of Section 207 Cr.P.C. the charges have been framed and the case has been fixed for prosecution evidence.
It is further submitted that if the case diary is not correctly reconstructed the accused persons/ applicant shall be prejudiced in defending themselves. Thus, the order dated 11.10.2022 is illegal and be quashed.
Learned AGA on the other hand submits that it appears from the record that the case diary of the case was lost and was not available and the trial court in an effort to reconstruct the same has directed the parties and it is in pursuance of the said order of the trial court the informant side has given some papers which the trial court had taken as genuine which is also evident from the order dated 11.10.2022. It is also submitted that the substantive evidence is the evidence of the witnesses recorded in the court and the decision with regard to the conviction and acquittal is to be taken by the trial court on the basis of evidence recorded before the trial court and thus there is no element of prejudice-ness.
Having heard learned counsel for the parties and having perused the record and keeping in view the order intended to be passed the issuance of notice on opposite party no.2 is hereby dispensed with.
Perusal of the impugned order dated 11.10.2022 would reveal that the instant applicant/ accused persons were summoned under Section 319 Cr.P.C. and thereafter the case was committed by the court of Magistrate to the court of Sessions as the alleged offences are triable by the sessions court. It is also evident that in pursuance of direction given by the trial court the accused persons had informed the court that they are not having any copy of the case diary while the impugned order shows that copy of relevant documents was provided to one of the accused, namely, Sanjay Singh and in this scenario some papers ppears to be filed by the informant side and in this background the trial court had passed impugned order dated 11.10.2022 indicating therein that as documentary evidence e.g. FIR, Site plan, charge sheet and injury reports are available in original on the record of the trial court and thus has fixed the date 14.10.2022 for framing of charges.
It is now informed by learned counsel for the applicants that the charges have also been framed against the accused persons/ applicants and one prosecution witness has also been testified on 18.11.2022 and the case is fixed for recording of further prosecution evidence.
In nutshell the grievance of the accused persons appears to be that copies of the police papers provided to them were supplied to the Court by the informant side and the same are not containing any date etc. on which the statement under Section 161 Cr.P.C., of the prosecution witness was recorded by the Investigating Officer and therefore the applicants shall be prejudiced in defending themselves.
It is to be recalled that in the cases wherein the record has been lost or the case diary is not available, despite the efforts made by the Court, acquittal could not be recorded automatically and the duty of the court is to proceed with the case on the basis of the available material/ evidence and having regard to the settled principles for appreciation of evidence the final order/ judgment must be passed.
The grievance of the applicants that the police papers which have been provided to them are not bearing any date etc. is a matter which the applicants as an accused person may agitate and place before the prosecution witnesses in their cross examination but in any case the trial is to proceed on the basis of existing material.
Thus, the instant application moved on behalf of the applicants/ accused persons is finally disposed of with a direction to the trial court that the trial court may proceed further with the trial, however, simultaneously an effort must be made to procure the case diary from any other source which has still not been explored and if the case diary is reconstructed again or some new papers are made available then it would be in the discretion of the trial court to recall the prosecution witnesses but in any case the trial could not be halted. At the cost of repeatation it is stated the trial of the case is to be concluded on the basis of existing material/ evidence and all the grounds which have been taken by the accused persons/ applicants in this application may be placed before the prosecution witnesses at the time of their cross examination. It is also evident that vital documents e.g. FIR, Injury Reports, site plan etc. are available on record, than by mere non mentioning the date on which the statement of a witness is recorded would not result in any prejudice to the applicant.
With the aforesaid observation, the instant application is finally disposed of.
Order Date :- 21.11.2022
Muk
