Allahabad High Court
Vinay Chandra Tiwari @ Vinay Chandra vs State Of U.P. Thru. The Prin. Secy. Home ... on 11 February, 2025
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:8709
Court No. - 12
Case :- APPLICATION U/S 482 No. - 999 of 2025
Applicant :- Vinay Chandra Tiwari @ Vinay Chandra
Opposite Party :- State Of U.P. Thru. The Prin. Secy. Home Deptt. Lko. And 3 Others
Counsel for Applicant :- Santosh Kumar Srivastava
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Lavania,J.
Supplementary affidavit is taken on record.
Heard Sri Santosh Kumar Srivastava, learned counsel for the applicant, learned AGA for the State of U.P. and perused the record.
By means of this application, the applicant has sought the following main relief(s):-
"Wherefore, it is most respectfully prayed that this Hon'ble Court may kindly be pleased to quash the impugned order dated 7.1.2024, passed by the learned Special Judge, POCSO Act, Ambedkar Nagar, in Special Sessions Trial POCSO Case No.10 of 2018; State Versus Vinay Tiwari, arising out of Case Crime No.155 of 2017, under sections- 354-A, 506 I.P.C. and Sections 7/8 of the Protection of Children from Sexual Offences Act, 2012, relating to the Police Station-Sammanpur, District- Ambedkar Nagar, as contained in Annexure no.1 to this petition, in the interest of law and justice.
It is further most respectfully prayed that this Hon'ble Court may kindly be pleased to direct the learned Trial Court to allow the petitioner to bring the documents, related to the F.I.R./Case Crime No.271 of 2024, under sections-376, 354-D, 506 I.P.C. at Police Station- Kishangarh, District- South West Delhi, on record in aforesaid Special Sessions Trial POCSO Case No.10 of 2018; State Versus Vinay Tiwari, in the interest of law and justice."
From the record, it appears that the Sessions Trial in issue i.e. S.S.T. POCSO Case No. 10/2018 (State vs. Vinay Tiwari) is at the stage of final arguments.
It further appears from the record that on 22.10.2024, the defence made a note on the order sheet, which is to the effect that 'no oral evidence would be adduced/produced' and thereafter on 08.11.2024, the defence indicated that the 'documentary evidence would not be given/adduced'.
The record also indicates that for final arguments, the case was fixed on 16.11.2024, 26.11.2024, 04.12.2024, 12.12.2024 and 21.12.2024 and on all these dates, the case was adjourned on the request of the accused/defence. On 07.01.2025, the date fixed in the case, the defence preferred an application to bring the documents on record to indicate/establish that the victim has implicated one person at Delhi in similar case. The contents of the application reads as under:-
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?????? ?? ?? ???????? ?? ??? ??????? ??? ???? ??????? ?????? ?? ???? ?? ?? ???????? ??? ???? ???? ??? ????? ?? ??????? ?????? ?? ???? ??????? ?? ?????? ??? ?????? ?? ??? ????????? ??????? ????? ?? ??? ??? ?? ???????? ??? ????? ????? ?? ???? ??? ???????? ??? ????? ????? ???? ???? ?????? ???? ???? ?????? ???
??? ????????? ?? ????????? ?? ?? ?????? ????? ???? ?? ?????? ???? ?? ???? ?? ???? !"
The trial court after considering the aforesaid facts rejected the application vide impugned order dated 07.01.2025, which reads as under:-
"???????? ??? ???? ????? ????? ???? ???????? ???? ?????? ??????? ??? ???????? ?? ??? ???? ???? ??? ???????? ?????? ????? ???????? ????????????? ?????? ???? ???? ????? ????? ???? ?????? ?? ??? ?? ??? ???????? ???? ?? ?? ???????? ?? ??? ??????? ??? ???? ??????? ?????? ?? ???? ?? ?? ???????? ??? ???? ???? ??? ????? ?? ??????? ?? ???? ??????? ?? ?????? ??? ?????? ?? ??? ??????? ??????? ????? ?? ???-??? ?? ???????? ??? ????? ????? ?? ???? ???? ???????? ??? ?????? ????? ???? ???? ?????? ???? ???? ?????? ??? ??? ?????? ????? ???? ?? ?????? ???? ?? ?? ?? ?????
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???? ??? ???????? ?? ?????? ????? ?????? ?? ?????? ?? ?? ???????? ?? ??????? ???????? ?????? ??????-22.10.2024 ?? ???????? ?? ????? ???? ?? ?? "??????? ??? ?? ????? ??????? ???? ???? ???" ??????-08.11.2024 ?? ?? ???????? ?? ????? ???? ??? ?? ?? ???????? ??????? ???? ???? ???" ?? ?? ???????? ??? ???? ???? ?? ?? ???? ???????? ??????-16 11.2024, 26.11.2024, 04.12.2024, 12.12 2024 ??? 21.12.2024 ?? ??? ???? ???? ??, ???? ??????? ?? ???????? ?????? ????? ????????????? ???????? ???? ???? ??? ??, ?? ???? ????? ????????????? ??? ???????? ????????????? ??????? ?? ???????? ???? ?? ???????? ?? ???????? ???? ??? ??? ???????? ????? ????? ?? ???? ??? ??, ????? ???????? ?????? ???? ???????? ?? ????????????? ????? ???? ???? ??? ???????? ?????? ????? ?? ???????? ???? ?? ???????? ?? ????????????? ???????? ???? ??? ??? ???????? ?????? ???? ??????? ?? ???? ?? ??? ?? ????-???? ????? ???? ?? ???? ?? ?? ?? ??? ????? ? ???????? ??????? ???????? ???? ???? ??? ??? ????? ?? ?????? ??? ???????????? ?? ????? ??? ???????? ?????? ???????? ????????????? ?????? ???? ???? ?????? ????? ???? ?????? ??????? ???? ???? ????? ???? ??, ????????? ????????????? ?????? ???? ???? ????? ???
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????????/???????? ???? ?????? ?????? ???????? ????????????? ???????? 07.01.2025 ?????? ???? ???? ?????? ????? ???? ?????? ?????? ???? ???? ??? ???????? ??????-15.01.2025 ?? ?????? ??? ??? ???"
On the issue involved in this case, it would be apt to refer the judgment passed by the Hon'ble Apex Court in the case of State of Madhya Pradesh vs. Badri Yadav and another reported in (2006) 9 SCC 549, the relevant paragraphs read as under:-
"14.Section 233 itself deals with entering upon defence by the accused. The application for recalling and re-examining persons already examined, as provided under Section 311 CrPC, was already rejected. The power to summon any person as a witness or recall and re-examine any person already examined is the discretionary power of the court in case such evidence appears to it to be essential for a just decision of the case. Under Section 233 CrPC the accused can enter upon defence and he can apply for the issue of any process for compelling the attendance of any witness in his defence. The provisions of sub-section (3) of Section 233 cannot be understood as compelling the attendance of any prosecution witness examined, cross-examined and discharged to be juxtaposed as a defence witness. In the present case PW 8 and PW 9 were juxtaposed as DW 1 and DW 2. This situation is not one what was contemplated by sub-section (3) of Section 233 CrPC.
15.When such frivolous and vexatious petitions are filed, a judge is not powerless. He should have used his discretionary power and should have refused relief on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. In the present case, the witnesses were examined by the prosecution as eyewitnesses on 18-12-1990, cross-examined and discharged. Thereafter, an application under Section 311 CrPC was rejected. They were recalled purportedly in exercise of power under sub-section (3) of Section 233 CrPC and examined as DW 1 and DW 2 on behalf of the accused on 17-7-1995. This was clearly for the purpose of defeating the ends of justice, which is not permissible under the law."
In the case of Sujith A.V. vs. State of Kerala reported in 2022 SCC OnLine Ker 5956, the High Court of Kerala at Ernakulam, after considering the above referred judgment, rejected the prayer of the petitioner to recall the witness, as would appear from the following paras, which read as under:-
"7.In this matter, the learned Additional Sessions Judge dismissed Crl.R.P. No. 46/2022 relying on a decision reported in [(2006) 9 SCC 549:AIR 2006 SC 1769: 2006 KHC 842 :(2006) 3 KLT 205:(2006) 9 SCC 549],State of Madhya Pradeshv.Badri Yadav]. In the said decision, the Apex Court considered the impact of Section 233(3) of Cr.P.C. Section 233 deals with 'entering upon defence'. Sub section 3 of Section 233 provides thatif the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. While interpreting sub section 3 of Section 233 of Cr.P.C, the Apex Court held thatS.233 itself deals with entering upon defence by the accused. The application for recalling and reexamining persons already examined, as provided under S.311 Cr.P.C., was already rejected. The power to summon any person as a witness or recall and reexamine any person already examined is the discretionary power of the Court in case such evidence appears to it to be essential for a just decision of the case. Under S.233 Cr.P.C. the accused can enter upon defence and he can apply for the issue of any process for compelling the attendance of any witness in his defence. The provisions of sub-s.(3) of S.233 cannot be understood as compelling the attendance of any prosecution witness examined, cross examined and discharged to be juxtaposed as Dws (Defence Witnesses). In the present case PW8 and PW9 were juxtaposed as DW1 and DW2. This situation is not one what was contemplated by sub-s.3 of S.233 Cr.P.C.
8.Thus the law is very clear on the point that the provisions of sub section 3 of Section 233 Cr.P.C. could not be understood as one compelling the attendance of any prosecution witness, who was examined in chief already, cross examined and reexamined, to be examined as a defence witness.
9.In the present case, the prayer that has been canvassed after dismissal of the petition filed to recall PW3 is for the said purpose and, therefore, such procedure cannot be permitted. In view of the matter, the orders impugned do not require any interference and, therefore, this petition lacks merit and is accordingly dismissed."
Upon due consideration of the aforesaid, this Court finds no force in the instant application. It is for the following reasons:-
(i) The Sessions Trial in issue i.e. S.S.T. POCSO Case No. 10/2018 (State vs. Vinay Tiwari) is at the stage of final arguments.
(ii) According to the statement made by the defence before the trial court on 22.10.2024 and 08.11.2024, respectively, the defence choose to adduce no evidence (oral and/or documentary) and therefore, for final arguments, the case was fixed on 16.11.2024, 26.11.2024, 04.12.2024, 12.12.2024 and 21.12.2024 and on all these dates, the case was adjourned on the request of the accused/defence.
(iii) The documentary evidence for which an application under Section 233 Cr.P.C. was preferred, to the view of this Court, would not be useful to establish that the applicant has not committed the alleged crime.
(iv) From the aforesaid, it is apparent that the application under Section 233 Cr.P.C. was moved with sole intent to delay the trial which is at the stage of final arguments.
For the reasons aforesaid, the instant application is dismissed. No order as to costs.
Order Date :- 11.2.2025/Arun/-
