Avinash Birthare vs State Of U.P. And Another
2023 Latest Caselaw 19728 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:152104
 
Court No. - 87
 

 
Case :- APPLICATION U/S 482 No. - 22715 of 2023
 

 
Applicant :- Avinash Birthare
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Ray Sahab Yadav
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Neeraj Tiwari,J.

1. Heard learned counsel for the applicant and learned A.G.A. for the State.

2. The present 482 Cr.P.C. application has been filed to quash the judgment and order dated 16.03.2023 passed in Criminal Revision No.3 7 of 2023 and Criminal Revision No. 38 of 2023(Avinash Virthare Vs. State of U.P. and another), arising out of Criminal Case No. 1930 of 2012, under Section 138 N.I. Act, Police Station- Kotwali, District- Lalitpur.

3. Learned counsel for the accused-applicant submitted that earlier the statement of accused-applicant was not recorded under Section 313 Cr.P.C. and further opportunity of evidence was closed by the trial Court, therefore, he has filed application No. 57-Kha and 61-Kha, which were partly allowed vide order dated 29.11.2022 with the specific finding that statement of accused has not been recorded under Section 313 Cr.P.C. and he was given an opportunity to get his statement recorded under Section 313 Cr.P.C. He firmly submitted that once it is admitted fact that trial Court has not recorded the statement of accused-applicant under Section 313 Cr.P.C. and for that opportunity has been granted by the trial Court vide order dated 29.11.2022, it is mandatory on the part of the trial Court to at leas provide on opportunity to produce his evidence in support of statement under Section 313 Cr.P.C. He next submitted that against the order dated 29.11.2022, applicant has filed revision, but the same was rejected vide order dated 16.03.2023 only on the ground that matter is pending since 2012, therefore, it has to be decided at the earliest.

4. I have considered the submission made by learned counsel for the applicant and perused the record.

5. From the perusal of order dated 29.11.2022, it is apparently clear that it was a mistake on the part of the trial Court for not recording the statement of accused-applicant under Section 313 Cr.P.C., which has been rectified by the trial Court vide order dated 29.11.2022, but opportunity for producing the evidence has been refused and the order dated 29.11.2022 was also affirmed by the revisional court vide order dated 16.03.2023.

6. I am of the firm view that once it is admitted fact that statement of accused-applicant was not recorded under Section 313 Cr.P.C. and opportunity for recording the same was granted by the trial Court vide order dated 29.11.2022, therefore, trial Court must have given at least one opportunity to produce the evidence in favour of statement given Section 313 Cr.P.C.

7. Therefore, order dated 29.11.2022 and 16.03.2023 are modified to the extent that applicant be given only one opportunity for producing the evidence and for that trial Court shall fix a date. In case evidence is not produced by the accused-applicant on the date fixed by the trial Court, opportunity of same shall be closed and trial Court shall proceed to decide the case in accordance with law.

8. With the aforesaid observation, application is partly allowed.

Order Date :- 28.7.2023

ADY