Mohammad Abdullah Khan Alias Abdullah ... vs State Of U.P.
2025 Latest Caselaw 4987 ALL

Allahabad High Court

Mohammad Abdullah Khan Alias Abdullah ... vs State Of U.P. on 13 February, 2025

Author: Samit Gopal

Bench: Samit Gopal

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:20993
 
Court No. - 78
 

 
Case :- APPLICATION U/S 482 No. - 13166 of 2024
 

 
Applicant :- Mohammad Abdullah Khan Alias Abdullah Azam Khan
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Imran Ullah,Mohammad Khalid
 
Counsel for Opposite Party :- G.A.,Prasoon Kumar,Sharad Sharma
 

 
Hon'ble Samit Gopal,J.
 

1. List revised.

2. Sri Imran Ullah and Sri Mohammad Khalid, learned counsels for the applicant, Sri Manish Goyal, learned Senior Advocate/Additional Advocate General, Sri A.K. Sand, learned Government Advocate, all assisted by Sri J.K. Upadhyay, learned A.G.A.-I for the State of U.P./Opposite Party no. 1, Sri Sharad Sharma, learned counsel for the opposite party no. 2 are present who have been heard and records have been perused.

3. The present Criminal Misc. Application U/S 482 Cr.P.C. has been filed by the applicant- Mohammad Abdullah Khan Alias Abdullah Azam Khan with the following prayers:-

"It is, therefore, most respectfully prayed that the Order dated 19.03.2024 passed by the Ld. First Additional Chief Judicial Magistrate (MP/MLA), Rampur in Case No. 312/2022 arising from Crime No. 594/2019, Police Station Civil Lines,Under Sections 420, 467, 468, 471 IPC in terms whereof the Application dated 15.03.2024 under S. 243 r/w S.91 of the Code of Criminal Procedure, 1973 praying that the VHS tapes/cassettes of Abdul Matin's marriage dated 16.12.1990 and Jauhar day dated 10.12.1994 their digital version and other material exhibits from Material Exhibit D-1/DW10 to Material Exhibit D-9/DW-10 and the Expert Report, Transcription Report and Invitation Cards of the Walima of Abdul Matin's marriage from Exhibit D-1/DW10 to Exhibit D-4/DW10, proved in Criminal Case No. 312/1022 arising out of Case Crime No. 4/2019 PS Ganj be kindly summoned from this Hon'ble Court, was dismissed be set aside/quashed AND that the said Application dated 15.03.2024 under S.243 r/w S. 91 of the Code of Criminal Procedure, 1973 be allowed.

It is further prayed that this Hon'ble Court may graciously be pleased to stay further proceeding in the Case No. 312/2022 pending before the Ld. First Additional Chief Judicial Magistrate (MP/MLA), Rampur in Case No. 312/2022 arising from Crime No. 594/2019, Police Station Civil Lines,Under Sections 420, 467, 468, 471 IPC.

And/or to pass such other and further order or direction which this Hon'ble Court may deem fit and proper under the aforesaid circumstances of the case."

4. Perusal of the records go to show that on 24.4.2024 the following order was passed by a co-ordinate Bench of this Court:

"1. Heard Mr. Imran Ullah, learned counsel for the applicant and Mr. P.C. Srivastava, learned Additional Advocate General representing the State.

2. By means of this application under Section 482 Cr.P.C., following prayer has been made by the applicant :

"It is, therefore, most respectfully prayed that the order dated 19.03.2024 passed by Ld. First Additional Chief Judicial Magistrate (MP/MLA), Rampur in Case No. 312 of 2022 arising from Crime No. 594 of 2019, police station Civil Lines under Sections 420, 467, 468, 471 IPC in terms whereof the application dated 15.03.2024 under Sections 243 r/w Section 91 of the Code of Criminal Procedure, 1973 praying that the VHS tapes/cassettes of Abdul Matin's marriage dated 16.12.1990 and Jauhar day dated 10.12.1994, their digital version and other material exhibits from Material Exhibit D-1/DW10 to Material Exhibit D-9/DW-10 and the Expert Report, Transcription Report and Invitation Cards of the Walima of Abdul Matin's marriage from Exhibit D-1/DW10 to Exhibit D-4/DW10, proved in Criminal Case No. 312 of 2022 arising out of Case Crime No. 4/2019 PS Ganj be kindly summoned from this Hon'ble Court, was dismissed be set aside/quashed AND that the said application dated 15.03.2024 under Section 243 r/w Section 91 of the Code of Criminal Procedure, 1973 be allowed.

It is further prayed that this Hon'ble Court may graciously be pleased to stay further proceeding in Case No. 312 of 2022 pending before the First Additional Chief Judicial Magistrate (MP/MLA), Rampur in Case No. 312 of 2022 arising from Crime No. 594 of 2019, police station Civil Lines under Sections 420, 467, 468, 471 IPC."

3. Main substratum of argument of learned counsel for the applicant is that the applicant is accused in this case but he is being deprived of giving defence evidence and producing relevant defence witnesses before the trial Court. In order to strengthen the said submissions, it is further submitted that statement of the accused/applicant under Section 313 Cr.P.C. has been recorded on 10.01.2024 and thereafter, the accused-applicant produced 12 defence witnesses and statement of DW-12 was recorded on 19.03.2024. In the meantime, on 15.03.2024, the applicant moved an application before the Court of Special Magistrate (MP/MLA), Rampur with the prayer that "it is therefore prayed that keeping in view of the aforesaid reasons the VHS steps/video cassettes of Abdul Matin's marriage dated 16.12.1990 and Jauhar day dated 10.12.1994, their digital version and other material exhibits from Material Exhibit D-1/DW10 to Material Exhibit D-9/DW-10 and the Expert Report, Transcription Report and Invitation Cards of Walima of Abdul Matin's marriage from Exhibit D-1/DW10 to Exhibit D-4/DW10 as referred in above paragraph no. 8 and proved in Criminal Case No. 312 of 2022 arising out of Case Crime No. 4 of 2019 PS Ganj may kindly be summoned from the Hon'ble Allahabad High Court in Criminal Revision No. 159 of 2024 so that the same may also be proved and exhibited in the present case bearing Crime No. 594 of 2019 PS Civil Lines in the interest of justice otherwise the defence shall be highly prejudiced", but the said application has been rejected vide order dated 19.03.2024 by the trial Court, which is the subject matter of challenge in the present application.

4. It is further submitted by learned counsel for the applicant that since video cassette, certificate under Section 65B of Indian Evidence Act, three expert reports and invitation cards are the material exhibits of Criminal Case No. 312 of 2022 arising out of Case Crime No. 4 of 2019, under Sections 420, 467, 468, 471, 120B IPC, police station Ganj, district Rampur, in which the applicant has been convicted by the trial Court as well as by the Appellate Court and his Criminal Revision No. 159 of 2024 under Section 397/401 Cr.P.C. is pending before this Court, in which vide order dated 24.01.2024, original record of the trial Court has been summoned and the same has been received to this Court, therefore, certified copy of the required documents cannot be filed before the trial Court of this case. It is also pointed out that hearing of above-mentioned Criminal Revision No. 159 of 2024 is going on before this Court, in which next date is fixed for 06.05.2024. Under the circumstances, an application dated 23.04.2024 was moved on behalf of the applicant before the trial Court with a prayer to grant sufficient time to produce certified copies of the expert reports, transcription report and invitation (walima) card of Abdul Matin's marriage dated 16.12.1990, etc., which has bearing on merit of this case, but the said application has also been rejected by the trial Court on the same day vide order dated 23.04.2023 and started hearing the arguments of the prosecution. Lastly, it is submitted that date and events of this case clearly reflect that trial Court is proceeding in a haste manner depriving the accused-applicant to produce material evidence and witnesses in his defence.

5. On putting query in this regard, Mr. P.C. Srivastava, learned Additional Advocate General representing the State submits that he may be allowed short time to seek specific instructions in the matter.

6. As prayed, three weeks' time is allowed to Mr. P.C. Srivastava, learned Additional Advocate General to seek complete instructions in the matter.

7. List this case on 16.05.2024.

8. Till the next date of listing, further proceeding of the aforesaid case against the applicant shall remain stayed.

9. Registrar (Compliance) of this Court shall communicate this order to the concerned trial Court within 24 hours."

5. The matter was then taken up on various dates and subsequently on 22.10.2024 learned counsel for the State and learned counsel for the opposite party no. 2 submitted that they did not intend to file any counter affidavit in the matter. The following order was passed by this Court on the said date:-

"1. Sri Imran Ullah and Sri Mohammad Khalid, learned counsel for the applicant, Sri Manish Goyal, learned Senior Advocate/Additional Advocate General and Sri A.K. Sand, learned Government Advocate, both assisted by Sri J.K. Upadhyaya, learned AGA for the State and Sri Prasoon Kumar, Advocate for opposite party no.2 are present.

2. Learned counsel for the State and learned counsel appearing for opposite party no.2 submit that they do not intend to file any counter affidavit in the matter.

3. The matter is thus to be finally heard and decided.

4. As jointly prayed by learned counsels for the parties, let the matter be listed on 08.11.2024 for final disposal.

5. The parties shall be at liberty to make a mention on the said date."

6. Today the matter has been taken up and heard finally.

7. Learned counsels for the applicant submitted that the order rejecting the application of the applicant for summoning the required material and documents is illegal and against the settled principles of law and even rejection of the same will seriously damage the defence of the accused/applicant. It is submitted that the order rejecting the said application gives three reasons for rejection which are:- (1) documents and material required to be summoned are before the High Court in a Criminal Revision and as such the trial court cannot direct its summoning; (2) electronic records have been seen by the trial court concerned in another trial and; (3) the accused can produce the said documents under Section 33 of the Evidence Act. It is submitted that all the said three grounds are totally illegal and are not sustainable as the paramount consideration in a trial is a fair and impartial trial and by the said order the defence of the accused/applicant would be seriously prejudiced. It is submitted that although the said documents are before the High Court after being summoned in a criminal revision but the same can be sent to the trial court concerned for its use as per procedure. It is submitted that the Apex Court has already passed directions regarding mode and procedure of sending the same to the trial court as per an order dated 25.04.2018 passed in the case of Asian Resurfacing of Road Agency Private Limited and Another v. Central Bureau of Investigation: (2018) 16 SCC 299, which has been placed before the Court which reads as under:-

"1. Heard learned counsel for the parties.

2. In view of judgment of three Judge Bench dated 28th March, 2018 and after considering the material on record, we do not find any ground to interfere with the order framing charge.

3. Accordingly, the trial court is directed to proceed with the matter pending before it. All contentions of the parties are left open which may be gone into by the trial court. Parties are directed to appear before the trial court on 14th May, 2018.

4. To give effect to directions in judgment of this Court dated 28th March, 2018, noted above, we direct that wherever original record has been summoned by an appellate/revisional court, photocopy/scanned copy of the same may be kept for its reference and original returned to the trial courts forthwith.

5. We also direct that if in future the trial court record is summoned, the trial courts may send photocopy/scanned copy of the record and retain the original so that the proceedings are not held up. In cases where specifically original record is required by holding that photocopy will not serve the purpose,the appellate/revisional court may call for the record only for perusal and the same be returned while keeping a photocopy/scanned copy of the same.

6. A copy of this order be sent to all the High Courts. The appeals are disposed of."

8. Learned counsels for the State and learned counsel for the opposite party no. 2 submitted that they have no objection if the present petition is allowed and further appropriate directions be issued to the trial court concerned to proceed with the trial expeditiously with a specific directions of not granting any undue adjournment to either of the parties.

9. After having heard learned counsels for the parties and perusing the records, it is apparent that the present petition u/s 482 Cr.P.C. has been filed with the prayers as quoted herein above. The only grievance of the applicant, as of now, is with regards to summoning of some electronic records and documents which have been summoned by the High Court in Criminal Revision No. 159 of 2024 (Dr. Tanzeen Fatima Vs. State of U.P.).

10. The present petition u/s 482 Cr.P.C. is allowed.

11. The documents and the electronic records as have been summoned before the High Court in the said criminal revision concerning Case Crime No. 04 of 2019, Police Station Ganj, District Rampur are directed to be sent to the trial court concerned as per the procedure and directions of the Apex Court in the case of Asian Resurfacing (supra). The trial court is directed to proceed with the trial expeditiously. It shall ensure that no undue adjournment is granted to either of the parties and shall ensure that the trial is concluded as expeditiously as possible, subject to any legal impediment.

(Samit Gopal,J.)

Order Date :- 13.2.2025

Naresh