Uttarakhand High Court
CRLA/179/2022 on 5 July, 2023
Office Notes,
reports, orders or
SL. proceedings or
Date COURT'S OR JUDGES'S ORDERS
No directions and
Registrar's order
with Signatures
SPLA No. 154 of 2022
With
GA No. 76 of 2022
CRLA No. 179 of 2022
Hon'ble Manoj Kumar Tiwari, J.
Hon'ble Pankaj Purohit, J.
Mr. J.S. Virk, learned Deputy Advocate
General for the State of Uttarakhand/
appellant.
2. Mr. Devansh Kaushik, learned counsel
holding brief of Mr. Parikshit Saini, learned
counsel for respondent nos. 2&4.
3. Mr. Rajendra Singh Azad, learned counsel
for applicant/respondent no. 5, appeared
through video conferencing.
4. Respondent-accused no.5 has moved an
application for deleting his name from the
array of parties. According to him, he was
charge sheeted for offence punishable under
Section 120-B of IPC, and his application for
discharge was rejected by trial court.
5. He approached this Court under Section
482 of Cr.P.C., challenging the order passed
by learned Additional Sessions Judge, Laksar,
District Haridwar in Sessions Trial No. 295 of
2014, whereby his request for discharge
under Section 227 of Cr.P.C., was declined.
6. Learned counsel for the applicant submits
that the said C-482 Application was allowed
by learned Single Judge, vide judgment dated
17.11.2015. Operative portion of the said
judgment is reproduced below:
"Consequently, petition is allowed.
Impugned order passed by learned Trial
Judge is set aside. Petitioner stands
discharged for the offence punishable under
Section 120-B IPC under Section 227 of the
Code of Criminal Procedure."
7. Learned counsel for the applicant/
respondent no.5 has drawn attention of this
Court to the order passed by the learned trial
court on 08.12.2015 pursuant to judgment of
this Court, which is on record as Annexure No.
2 to the application. Perusal of the said order
reveals that learned trial court discharged the
applicant for offences punishable under
Section 120-B and Section 302 IPC.
8. Based on the said order passed by
learned trial court, learned counsel for the
applicant/respondent no.5 contends that since
applicant was discharged of both the charges
punishable under Sections 120-B r/w 302 of
IPC, therefore, he was not tried in Sessions
Trial No. 295 of 2014 and his name has
wrongly been added in the array of parties in
the present appeal. He thus submitted that
name of applicant/respondent no.5 deserves
to be deleted from the array of party.
9. Per contra, learned State Counsel
submitted that from the perusal of the order
passed by learned trial court on 08.12.2015, it
appears that learned trial court erred in
discharging the applicant/respondent no.5
from charges punishable under Section 120-B
r/w 302 IPC, as learned Single Judge of this
Court had discharged him only for offence
punishable under Section 120-B IPC and there
was no reference to the charge under Section
302 IPC in the judgment passed by this Court.
10. He further refers to the judgment
impugned in this Appeal, rendered by learned
Second Additional Sessions Judge, Haridwar
on 31.03.2022. In the said judgment, it is
mentioned that applicant has been acquitted
of the charge punishable inter-alia under
Section 302/120-B IPC. Thus, he submits that
name of the applicant/ respondent no.5 has
rightly been added in the appeal and the
prayer made by learned counsel for the
applicant/respondent no.5 for deletion of his
name if accepted, will result in miscarriage of
justice.
11. We find substance in the submission
made by learned State Counsel.
12. From the judgment rendered by learned
trial court, impugned in the present appeal, it
appears that applicant/respondent no.5 faced
trial, which resulted in his acquittal.
13. In such view of the matter, we reject the
prayer made by the applicant.
14. Accordingly, Criminal Miscellaneous
Application (IA No. 2 of 2023) would stand
disposed of.
Delay Condonation Application (01 of 2022)
15. As per office report, there is delay of 64
days, in filing this government appeal.
16. Learned counsel for the respondents
submits that they have no objection if the
delay is condoned.
17. Perusal of the Delay Condonation
Application reveals that delay had occurred in
obtaining necessary permission and there was
no wilful delay on the part of the appellant.
18. We, accordingly, allow the Delay
Condonation Application and delay of 64 days
is condoned.
Leave To Appeal No.154 of 2022
19. Learned State Counsel submits that the
victim's appeal, numbered as CRLA 179 of
2022, is admitted by Coordinate Bench of this
Court, which is connected with the present
appeal.
20. Learned State Counsel further submits
that acquittal of the respondents has been
recorded, based on some contradiction in the
eye witness account, however, the
contradiction pointed out in the impugned
judgment, is not so material, which may,
demolish the prosecution case. He further
submits that there are certain incriminating
circumstances, which were overlooked by
learned trial court, especially, recovery of
dead body at the pointing out of the accused
persons, which has resulted in miscarriage of
justice.
21. Having regards to the facts and reasons
mentioned above, we are inclined to grant
leave to appeal.
22. List for hearing in due course.
23. In the meantime, Registry shall prepare
the paper book and supply the same to the
learned counsel for the parties, on payment of
usual charges, within eight weeks.
(Pankaj Purohit, J.) (Manoj Kumar Tiwari, J.)
05.07.2023
PN
