Allahabad High Court
Anuj vs State Of U.P. And Another on 6 January, 2025
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:2208
Court No. - 71
Case :- APPLICATION U/S 482 No. - 34204 of 2024
Applicant :- Anuj
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Gaurav Kakkar,Raghvendra Prakash
Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. Gaurav Kakkar, assisted by Mr. Raghvendra Prakash, the learned counsel for applicant and the learned A.G.A. for State.
2. Perused the record.
3. Applicant-Anuj, who is a charge sheeted accused, has approached this Court by means of present application under Section 482 Cr.P.C. with the following prayer:-
"It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow the instant 482 Application and set aside/quash the impugned order dated the order impugned dated 24.09.2024 passed by Additional District Judge, POCSO Act, Bijnor in S.T. No.874 of 2021 (State vs. Nitin and others) arising out of Case Crime No.276 of 2021, under section 147, 148, 149, 302, 120B, 34 LP.C., Police Station-Kotwali City, District-Bijnor, whereby the trial of the charge sheeted accused persons have been separated from the additional accused persons summoned under section 319 Cr.P.C., otherwise the applicant shall suffer irreparable loss and hardship.
It is further prayed that this Hon'ble Court may graciously be pleased to Stay the effect and operation of the order impugned dated 24.09.2024 passed by Additional District Judge, POCSO Act, Bijnor in S.T. No.874 of 2021 (State vs. Nitin and others) arising out of Case Crime No.276 of 2021, under section 147, 148, 149, 302, 120B, 34 I.P.C., Police Station-Kotwali City, District-Bijnor, as well all coercive measures / process issued against the applicant, during the pendency of the present 482 application before this Hon'ble Court, otherwise, the applicant shall suffer irreparable loss and hardship."
4. It transpires from record that during pendency of trial i.e. Sessions Trial No. 874 of 2021 (State Vs. Nitin and others) under Sections 147, 148, 149, 302, 120B, 34 I.P.C., Police Station Kotwali City, District Bijnor, an application under Section 319 Cr.P.C. was filed by the first informant/prosecution praying therein that since complicity of the prospective accused has emerged in the crime in question, as per the deposition of PW-1 Maharaj Singh, therefore, they also be summoned to face trial. Aforementioned application came to be allowed by Court below vide order dated 28.02.2023.
5. Feeling aggrieved by the order dated 28.02.2023, the prospective accused Devendra Singh approached this Court by means of Criminal Revision No.1475 of 2023 (Devendra Singh Vs. State of U.P. and another), wherein an interim order dated 20.04.2023 was passed by this Court. For ready reference, the same is reproduced hereinbelow:-
"Heard Sri V.M. Zaidi, Senior Advocate assisted by Sri Uma Shankar Tiwari, learned counsel for the revisionist and learned AGA for the State.
The present criminal revision has been preferred to set aside the order dated 28.02.2023 passed by Sessions Judge, Bijnor, in sessions trial no. 874 of 2021 (State Versus Nitin and others) whereby the learned trial court summoned the revisionists under section 319 of Cr.P.C.
The F.I.R. of this case was lodged on 09.05.2021 by Maharaj Singh against six named and one unknown persons including the revisionist alleging therein that the first informant with his two daughters-in-law along with Dheer Singh and Ankur (the deceased) had gone to bring fodder by tractor then the accused persons started indiscriminate firing upon the deceased due to which Dheer Singh and Ankur died on the spot.
Learned counsel for the revisionist contended that as per post-mortem report Dheer Singh, sustained one single fire arm injury and other deceased Ankur sustained two fire arm injuries. During the investigation statement of the first informant has been recorded on 11.05.2021 and second statement has been recorded on 06.07.2021 and statement of the eye-witnesses Rita and Babita were recorded on 18.05.2021. Learned senior counsel further submits that as per second statement of the first informant and other eye-witnesses Rita and Babita as recorded under section 161 Cr.P.C. no role has been assigned to the revisionists even they have not stated for the presence of revisionists at the time of the incident.
It is further submitted that a direct motive of the present offence is against co-accused Krishna, Anuj and Nitin. The father of the revisionist is eye-witness of Session trial of murder case of father of the other co-accused. The family of other co-accused person had long enmity with the first informant because the first informant and his sons committed murder of the father of the other co-accused. It is further submitted that the impugned orders have been passed without considering the facts, circumstances and law laid down by the constitutional bench of the Supreme Court.
It is further contended that the co-ordinate Bench of this Court in Criminal Revision No.1615 of 2023 filed by other co-accused persons, namely, Lalit and Amit, has stayed the operation the impugned order by vide order dated 07.04.2023 and the case of the revisionist-accused is identical to that of the co-accused.
Matter requires consideration.
Learned AGA has accepted notice for the State of U.P.
Issue notice to opposite party no. 2.
Counter affidavit may be filed within three weeks. Rejoinder affidavit, if any, may be filed within one week thereafter.
List this case after four weeks along with connected Criminal Revision No.1615 of 2023.
Till the next date of listing, the effect and operation of the impugned order dated 28.02.2023 shall remain stayed. "
6. Apart from above, prospective accused namely Lalit and another also approached this Court by means of Criminal Revision No.1615 of 2023 (Lalit and another Vs. State of U.P.), wherein an interim order dated 07.04.2023 was passed. For ready reference, the order dated 07.04.2023 is reproduced hereinbelow:
"Supplementary affidavit filed today is taken on record.
Shri V.M Zaidi learned senior counsel assisted by Shri M.J Akhtar, learned counsel for the revisionist and learned A.G.A for the State are present.
The present criminal revision has been preferred to set aside the order dated 28.02.2023 passed by Sessions Judge, Bijnor, in sessions trial no. 874 of 2021 (State Versus Nitin and others) whereby the learned trial court summoned the revisionists under section 319 of Cr.P.C.
Learned counsel for the revisionists submits that the first information report dated 09.05.2021 of double murder case has been lodged by one Maharaj Singh, father and grand father of the deceased against 6 named persons and one unknown person including the revisionists after about 6 hours and 28 minutes of the incident and stating that at the time of the incident the first informant his two daughter in laws along with the deceased Dheer Singh and Ankur had gone bought straw by a tractor trolley and the named co-accused Krishna, Lalit, Amit and two unknown persons started in-discriminating firing upon the deceased persons and they died on the spot.
It is further submitted that as per post-mortem report Dheer Singh, sustained one single fire arm injury and other deceased Ankur sustained two fire arm injuries. During the investigation statement of the first informant has been recorded on 11.05.2021 and second statement has been recorded on 06.07.2021 and statement of the eye-witnesses Rita and Babita were recorded on 18.05.2021. Learned senior counsel further submits that as per second statement of the first informant and other eye-witnesses Rita and Babita as recorded under section 161 Cr.P.C. no role has been assigned to the revisionists even they have not stated for the presence of revisionists at the time of the incident.
It is further submitted that a direct motive of the present offence is against co-accused Krishna, Anuj and Nitin. The father of the revisionists is eye-witness of Session trial of murder case of father of the other co-accused. The family of other co-accused person had long enmity with the first informant because the first informant and his sons committed murder of the father of the other co-accused. It is further submitted that the impugned orders have been passed without considering the facts, circumstances and law laid down by the constitutional bench of the Supreme Court.
Admit.
Learned A.G.A accept the notice for opposite party no. 1.
Issue notice to opposite party no. 2 through C.J.M concerned returnable at an early date.
Learned A.G.A and opposite party no. 2 may file their counter affidavits within two weeks. Rejoinder affidavit if any may be filed within a week thereafter.
Effect and operations of the order dated 28.02.2023 shall remain stayed till the next date of listing."
7. In view of aforesaid development the prosecution filed an application (paper no. Kha 148) with the prayer to segregate the trial of charge sheeted accused inasmuch as the trial of the prospective accused who have also summoned by Court below has been stayed by the High Court. This application filed by the prosecution/first informant was opposed by charge sheeted accused who filed their objection (paper no.kha 149). Ultimately, Court below upon evaluation of the submissions urged on behalf of the prosecution in support of aforementioned application as such the objection raised by the charge sheeted accused allowed the said application vide order dated 24.09.2024.
8. Feeling aggrieved by the above order order dated 24.09.2024 passed by Court below applicant who is named and charge sheeted accused has now approached this Court by means of present application under Section 482 Cr.P.C.
9. Learned counsel for applicant submits that perusal of the order dated 24.09.2024 passed by Court below will go to show that Court below allowed the application under Sectioin 317(2) Cr.P.C. filed by prosecution without pointing out any exceptional circumstance. He, therefore, submits that in view of the facts and circumstances of the case as noted herein above, no occasion arose before Court below to segregate the trial of the charge sheeted accused. He, therefore, contends that order impugned is therefore, liable to be set aside by this Court.
10. Per contra, the learned A.G.A. has vehemently opposed the present application. Learned A.G.A. submits that admittedly the prospective accused were summoned by Court below after the statement-in-chief of PW-1 Maharaj was recorded. Referring to the Five Judges Bench judgment of the Supreme Court in Hardeep Singh versus State of Punjab and ors. (2014) 3 SCC 92, the learned A.G.A. contends that no illegality was committed by Court below in passing the impugned order in respect of prospective accused with reference to the statement-in-chief of PW-1. However, since prospective accused have been summoned by Court below, on the basis of statement-in-chief of the PW-1, therefore, as per the scheme of criminal proceedings. Court below is bound to recall PW-1 to get his deposition recorded afresh in the presence of accused who have been summoned subsequently. Since, the impugned order passed by trial Court summoning the prospective accused has been stayed by this Court, therefore, in view of above, no illegality has been committed by Court below in segregating the trial of the charge sheeted accused. As such, no illegality or infirmity exits in the order impugned. Consequently, the present application is liable to be dismissed.
11. When confronted with above, the learned counsel for applicant could not overcome the same.
12. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon perusal of record, this Court finds that the objection raised by the learned A.G.A. in opposition to this application are not only borne out from the record but furthermore the same could not be dislodged by the learned counsel for applicant. As such, no good ground exists to entertain the present application.
13. As a result, the present application fails and is liable to be dismissed.
14. It is, accordingly, dismissed.
Order Date :- 6.1.2025
Imtiyaz
