Allahabad High Court
Dharmenra Kumar @ Badelal And Another vs State Of U.P. on 14 December, 2023
Author: Deepak Verma
Bench: Deepak Verma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:236829
Court No. - 89
Case :- APPLICATION U/S 482 No. - 40737 of 2023
Applicant :- Dharmenra Kumar @ Badelal And Another
Opposite Party :- State of U.P.
Counsel for Applicant :- Rajeev Upadhyay
Counsel for Opposite Party :- G.A.
Hon'ble Deepak Verma,J.
1. Heard Sri Rajeev Upadhyay, learned counsel for the applicants and learned A.G.A. for the State.
2. This application under Section 482 Cr.P.C. has been filed by the applicants to quash the judgment and order dated 26.09.2023 passed by Addl. Sessions Judge, Court No.2/Special Judge (Gangster Act), Prayagraj in S.T. No.442 of 2016, arising out of Case Crime No.94 of 2016, under Sections 302, 201, 364, 34 I.P.C., P.S. Civil Lines, District Prayagraj as well as further prayed for to direct the court concerned to conduct the spot inspection of place of alleged incident in pursuance of Section 310 Cr.P.C. as well as to stay the above noted case during pendency of application.
3. Learned counsel for the applicants submitted that applicant has challenged the order passed on 26.09.2023 by which the application of the applicant bearing paper No69-?, U/s 310 Cr.P.C. has been rejected by learned Addl. Sessions Judge, Prayagraj. Brief facts of the case is that on 15.02.2016, informant-Shyam Kishore Gupta lodged an FIR for his missing son Ashish Gupta, succeeding a missing complaint filed for the same on 14.02.2016. Allegedly, on 12.02.2016, Ashish was last seen with accused Viccky, Shanu and Rajesh in front of Vikas Bhawan at 10 pm from where he was physically assaulted and taken away. On 18.02.2016 accused-Viccky was arrested and confessed his complicity along with other co-accused. Subsequently, the dead body was recovered from a sewer near the stream of Ganga. The body was decapitated and chopped with an axe which was confiscated by the Investigating Officer. The Investigating Officer prepared a panchayatnama including a site plan of the place of recovery/incident, citing that the recovery took place from Beli Kachhar. PW 1, the informant-Shyam Kishore stated that battery took place at Beli Kachhar. Post investigation, the body of the deceased was sent for post mortem to identify the real cause of death. It is argued that the real recovery was made from a sewer near Ganga and not the main stream of Ganga. The recovery memo was disputed to be faulty. PW 8 at the time of his examination said that the faulty site plan was not prepared in front of him. It is averred that in site plan, Nala is water flow of Holy Ganga or drainage water, it was not clear that it was linked from Ganga River. The dead body was found near the Holy Ganga or in the nala. It is not clear thus to know the real place, the spot inspection is must for the sake of justice. He further submitted that applicant moved an application on 20.09.2022 for local inspection in view of Section 310 Cr.P.C. On 26.09.2023, learned trial court in casual manner and without application of judicial mind rejected the application of the applicant.
4. Learned AGA vehemently opposed the submissions raised by applicants' counsel.
5. Considering the argument raised by applicants' counsel and perused the Section 310 Cr.P.C., which is reproduced hereinbelow:-
"310. Local inspection.
(1) Any Judge or Magistrate may, at any stage of any inquiry, trial or other proceeding, after due notice to the parties, visit and inspect any place in which an offence is alleged to have been committed, or any other place which it is in his opinion necessary to view for the purpose of properly appreciating the evidence given at such inquiry or trial, and shall without unnecessary delay record a memorandum of any relevant facts observed at such inspection.
(2) Such memorandum shall form part of the record of the case and if the prosecutor, complainant or accused or any other party to the case, so desires, a copy of the memorandum shall be furnished to him free of cost."
6. On perusal, the section permits the Magistrate to make local inspection and not a local enquiry. An inspection is permitted only for the purpose of properly appreciating the evidence in the case and it cannot be allowed to assume the character of the evidence. On perusal of section, it is also apparent that no duty cast on the Court to make local inspection simply because the prosecution or the accused applied for the same. The Court should make local inspection when it feels necessity or desires itself. Usually a local inspection is done after the evidence is closed and if the Court feels that for the purpose of appreciation of the evidence and to know the exact topography etc., the local inspection may be necessary. In such a case, the Court cannot be compel to make a local inspection. It is prerogative of the trial court if it consider during examination of trial or examination of witnesses in mid of the examination of the witness in order to appreciating the evidence when any glaring contradiction comes in the cross-examination of the witnesses or there is flaring variance between the prosecution and defence version as to the topography or situational aspect of a premises which is a scene of offence, it may inspect the premises. The Court can proceed U/s 310 Cr.P.C.
7. With the aforesaid observation, I do not find any illegality in the order passed by court below. No interference is warranted, at this stage.
8. Accordingly, the present 482 application is hereby dismissed.
Order Date :- 14.12.2023
Nitin Verma
(Deepak Verma, J.)
