Allahabad High Court
Varun Chaudhary vs State Of U.P. And Another on 28 April, 2023
Bench: Sadhna Rani (Thakur)
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 72
Case :- APPLICATION U/S 482 No. - 17110 of 2022
Applicant :- Varun Chaudhary
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Bhavya Sahai
Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Sadhna Rani (Thakur),J.
Heard learned counsel for the applicant, learned A.G.A. and perused the record.
By moving this application prayer is made to quash the order dated 16.03.2022 whereby the Additional District & Sessions Judge, Court No. 7, Ghaziabad rejected the application paper no. 146 Kha of the accused applicant Varun Chaudhary. This application paper no. 146 Kha was moved by Varun Chaudhary on 01.12.2021 under Section 223(a) Cr.P.C. and prayer was made that the court had allowed the application of the complainant under Section 319 Cr.P.C. on 10.11.2021, whereby the court summoned three persons; Naresh, Bikar and Babbal @ Bablu to face the trial under Sections 302, 307, 120B and 34 IPC and the file of the applicant Varun Chaudhary was separated from these three accused persons by the same order dated 10.11.2021. The case of Varun Chaudhary was ordered to proceed further. As the present accused and three summoned accused persons under Section 319 Cr.P.C. all are accused in the same offence arising out of the same FIR, the allegation against all of them is the same and if the trial of the present accused Varun Chaudhary is decided separately from the trial of rest accused persons, it would effect the judgment of the rest accused persons, which is not the intention of the law. Hence, this application under Section 223 (a) Cr.P.C. was prayed to be allowed.
This application was rejected by order dated 16.03.2022 with the finding that in the case rest three accused persons; Naresh, Bikar and Babbal @ Bablu have been summoned under Section 319 Cr.P.C.at a later stage, their trial is at nascent stage, even the charge against this accused person is to be framed. While in the file of Varun Chaudhary, the statements of as many as 15 witnesses have been recorded. As per law, in case of accused persons Naresh, Bikar and Babbal @ Bablu who have been summoned on the application under Section 319 Cr.P.C. all the 15 witnesses, whose statements have been recorded in the case of Varun Chaudhary, are to be summoned again and their evidence is to be recorded afresh for the newly summoned accused persons. Moreover, the court had no jurisdiction to stay the proceeding of the case pending in its own court.
Challenging the above order dated 16.03.2022 by moving this application under Section 482 Cr.P.C. it is prayed by the learned counsel for the applicant that as per Section 223(a) Cr.P.C. the case against all the accused persons for the same offence shall be heard together and if one case is decided earlier it would certainly effect the judgment of rest accused persons.
From perusal of the impugned order it is found that, though, it is not clearly mentioned in the order that the trial of the newly summoned accused persons would delay the trial of Varun Chaudhary, present applicant but the findings of the trial court is of the same effect that in case of three newly summoned accused persons the court would have to record the prosecution evidence afresh and in case of Varun Chaudhary statements of 15 witnesses have been recorded.
In the opinion of the court, admittedly, all the accused persons are being tried for the same offence in the same crime number and in case of all the accused persons the witnesses are the same. Though, it is true that statements of 15 witnesses have been recorded from the prosecution side and the statement of those witnesses cannot be read against the newly summoned accused persons unless they are summoned afresh to adduce their evidence against the newly summoned persons, but the delay cannot be a ground of over-passing the law. This application paper no. 146 Kha is moved on behalf of Varun Chaudhary who may be the most effected person by the delay of the case if all the accused are tried together. Otherwise also, earlier judgment in the same case would certainly effect the later judgment if some of the accused persons are tried afresh in the later sessions trial.
So far as the ground to stay the case pending in its own court is concerned, both the cases are pending in the same court and the court itself has separated the file of accused persons (who have been summoned on the basis of application under Section 319 Cr.P.C. vide order dated 10.11.2021 i.e. on the same day). There was no need to separate the case of newly summoned accused persons. The proper procedure and the only way in the law available for the trial court was to summon all the witnesses afresh for proving charge against newly summoned accused persons only. The order dated 16.03.2022 is found to be erroneous passed against the proposition of law.
The application of the applicant is hereby allowed. The impugned order of the trial court dated 16.03.2022 passed in S.T. No. 1308 of 2016 (State Vs. Varun Chaudhari), Case Crime No. 816 of 2016 is hereby set aside.
The trial court is directed to proceed with the trial of all the accused persons altogether after recording the statements of all the 15 witnesses afresh, whose evidence has been recorded earlier and giving an opportunity to the newly summoned accused persons to cross examine all the 15 witnesses.
Order Date :- 28.4.2023
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