Ashutosh Pathak v. State of U.P. Thru. Secy. Home Deptt. Lko. and Another

Court No. - 13 Case :- APPLICATION U/S 482 No. - 5718 of 2024 Applicant :- Ashutosh Pathak Opposite Party :- State Of U.P. Thru. Secy. Home Deptt. Lko. And Another Counsel for Applicant :- Paritosh Shukla,Sandeep Kumar Ojha,Sukh Deo Singh Counsel for Opposite Party :- G.A. Hon'ble Saurabh Lavania,J.

¶1Heard learned counsel for the applicant, Sri Ajay Kumar Srivastava, learned A.G.A. for the State and Sri Arun Sinha, Advocate, Sri Siddharth Sinha, Advocate and Sri Ram Chandra Singh, Advocate, who have put in appearance and filed vakalatnama on behalf of opposite party No.2, which is taken on record.

¶2By means of the present application under Section 482 CrPC, the petitioner has assailed the order dated 06.06.2024 and 18.05.2024 passed by the Additional Chief Judicial Magistrate, Court No. 20, District-Sultanpur in Criminal Case No. 7940 of 2024 (State Vs. Ashutosh Pathak and Others).

¶3Vide order dated 18.05.2024, the application preferred by the defence under Section 311 CrPC for summoning Kanak Lata Singh and Vinay Kumar Pathak as witness was partly allowed and defence was directed to produce Vinay Kumar Pathak on the date fixed in the case i.e. 30.05.2024. The order indicates that this witness was treated as defence witness. The relevant portion of the order dated

18.05.2024 reads as under: "उलቤኔखननीय हहै ककि अकभिययोजन किቤኔ दቛኋरቛኋ तथ्य किቤኔ उ्ሹ 3 सቛኋकቌኌयोሱ कियो परनीकቌኌत किरवቛኋयቤኔ जቛኋनቤኔ किቤኔ उपरቛኋाሲत शቤኔष सቛኋकቌኌयोሱ कियो उन्मयोकचित नहीሻ किरवቛኋयቛኋ गयቛኋ हहै जयो भिनी सቛኋቌኌनी अकभिययोजन किቤኔ दቛኋरቛኋ ्ቚस्ततुत ककियቤኔ गयቤኔ हह ककि वቤኔ पनीक़በतቛኋ किቤኔ मቛኋतቛኋ-कपतቛኋ हह। ककिसनी भिनी स्वाሲत्ቔ सቛኋቌኌनी किቛኋ सቛኋቌኚय अकभिययोजन किकी ओर सቤኔ ्ቚस्ततुत नहीሻ ककियቛኋ गयቛኋ हहै। प्ቔቛኋवलनी पर उपलब्ध तहरनीर किቤኔ पररशनीलन सቤኔ यह कवकदित हहआ ककि उ्ሹ तहरनीर मम पनीक़በतቛኋ नቤኔ यह किथन ककियቛኋ हहै ककि " कदिनቛኋाሲकि 23.04.2018 कियो कदिन मम 03.04 बजቤኔ आशतुतयोष किቤኔ दियोस्त कवनय कितुमቛኋर पቛኋठकि नቤኔ ्ቚቛኋरथरननी किቤኔ पቛኋस फयोन ककियቛኋ ककि आशतुतयोष बहहत परቤኔशቛኋन हहै। आप आ जቛኋओ। ्ቚቛኋरथरननी अपननी मቛኋाሲ किቤኔ सቛኋथ दियोनोሱ बच्चिोሱ कियो लቤኔकिर कदिनቛኋाሲकि

25.04.2018 कियो उसकिቤኔ घर गयनी। कदिनቛኋाሲकि 28.04.2018 कियो कदिन मम 12.30 बजቤኔ आशतुतयोष किቤኔ सቛኋथ झग़በቛኋ हयोनቤኔ पर आशतुतयोष नቤኔ वቛኋकदिननी किकी मቛኋाሲ व दियोनोሱ बच्चिोሱ कियो ककिचिन मम बाሲदि किरनቤኔ किቛኋ ्ቚयቛኋस किरनቤኔ लगቛኋ। कवनय पቛኋठकि नቤኔ तቛኋलቛኋ खतुलवቛኋयቛኋ कफर पतुरलस आ गई तयो वቛኋकदिननी व वቛኋकदिननी किቤኔ बच्चिोሱ तथቛኋ मቛኋाሲ कियो घर सቤኔ सतुरकቌኌत कनकिቛኋलቛኋ गयቛኋ। पनीकडितቛኋ दቛኋरቛኋ अपनቤኔ सቛኋቌኚय मम भिनी कवनय कितुमቛኋर पቛኋठकि कियो फयोन किरकिቤኔ घटनቛኋ किቤኔ बቛኋवत बतቛኋयቤኔ जቛኋनቤኔ किቛኋ किथन ककियቛኋ गयቛኋ हहै। न्यቛኋयቛኋलय किቤኔ मत मम अकभियतु्ሹगण दቛኋरቛኋ कवनय कितुमቛኋर पቛኋठकि कियो तलब ककियቤኔ जቛኋनቤኔ किकी यቛኋचिनቛኋ किकी गयनी हहै जयोककि घटनቛኋस्थल पर ममौजजूदि भिनी थቤኔ एवाሲ उसकिቤኔ नቛኋम किቛኋ उलቤኔख वቛኋकदिननी दቛኋरቛኋ अपननी तहरनीर एवाሲ सቛኋቌኚय मम भिनी ककियቛኋ गयቛኋ हहै। वቛኋकदिननी किቤኔ किथनोሱ सቤኔ यह पररलकቌኌत हयोतቛኋ हहै ककि कवनय कितुमቛኋर पቛኋठकि कियो वቛኋकदिननी एवाሲ अकभियतु्ሹ किቤኔ मध्य चिल रहቤኔ कववቛኋदि किकी पजूणर जቛኋनकिቛኋरनी हहै एवाሲ उ्ሹ सቛኋቌኌनी किቛኋ सቛኋቌኚय महत्वपजूणर सቛኋቌኌनी किकी शቤኔणनी किቤኔ अाሲतगरत आतቛኋ हहै, रजसቤኔ तलब ककियቛኋ जቛኋनቛኋ न्यቛኋययोकचित एवाሲ आवश्यकि ्ቚतनीत हयोतቛኋ हहै तቛኋककि ्ቚस्ततुत वቛኋदि किቛኋ कनस्तቛኋरण उकचित ्ቚकिቛኋर सቤኔ हयो सकिቤኔ। जहቛኋाሲ तकि किनकि लतቛኋ रसाሲह कियो बतमौर सቛኋቌኌनी तलब ककियቤኔ जቛኋनቤኔ किቛኋ ्ቚश्न हहै तयो उ्ሹ सቛኋቌኌनी न्यቛኋयቛኋलय किቤኔ मत मम महत्वपजूणर सቛኋቌኌनी किकी शቤኔणनी किቤኔ अाሲतगरत नहीሻ आतनी हहै। अततः उ्ሹ सቛኋቌኌनी कियो तलब ककियቤኔ जቛኋनቤኔ किቛኋ कवरधययोकचित आधቛኋर नहीሻ हहै। उलቤኔखननीय हहै ककि य्ቕकप, प्ቔቛኋवलनी सफቛኋई सቛኋቌኚय किቤኔ स्तर पर कनयत हहै एवाሲ अकभियतु्ሹगण किकी ओर सቤኔ ्ቚቛኋथरनቛኋ प्ቔ अत्याሲत कवलाሲब सቤኔ ्ቚस्ततुत ककियቛኋ गयቛኋ हहै, ककिाሲततु उपरयो्ሹ वकणरत समस्त तथ्योሱ एवाሲ पररसस्थकतयोሱ कियो दृकቖኌगत रखतቤኔ हहए अकभिययोजन किकी ओर सቤኔ ्ቚस्ततुत ्ቚቛኋथरनቛኋ प्ቔ अाሲतगरत धቛኋरቛኋ 311 दिाሲ०्ቚ०साሲ० वቛኋस्तቤኔ तलब ककियቤኔ जቛኋनቤኔ कवनय कितुमቛኋर पቛኋठकि व किनकि लतቛኋ रसाሲह आाሲकशकि रूप सቤኔ स्वनीकिቛኋर हयोनቤኔ ययोग्य हहै। आदिቤኔश अकभियतु्ሹगण किकी ओर सቤኔ ्ቚस्ततुत ्ቚቛኋथरनቛኋ प्ቔ अाሲतगरत धቛኋरቛኋ 311 दिाሲ०्ቚ०साሲ० वቛኋस्तቤኔ तलब ककियቤኔ जቛኋनቤኔ स्वताሲ्ቔ सቛኋቌኌनी कवनय कितुमቛኋर पቛኋठकि व किनकि लतቛኋ रसाሲह आाሲकशकि रूप सቤኔ स्वनीकिቛኋर ककियቛኋ जቛኋतቛኋ हहै। सቛኋቌኌनी कवनय कितुमቛኋर पቛኋठकि जररयቤኔ सम्मन तलब होሱ। अकभियतु्ሹगण कियो आदिቤኔकशत ककियቛኋ जቛኋतቛኋ हहै ककि वቤኔ अकቇኌम कनयत कतरथ कदिनቛኋाሲकि 30.05.2024 कियो उ्ሹ सቛኋቌኌनी कवनय कितुमቛኋर पቛኋठकि कियो न्यቛኋयቛኋलय किቤኔ समቌኌ ्ቚत्यቤኔकि दिशቛኋ मम ्ቚस्ततुत किरनቛኋ सतुकनसश्चित किरम। ऐसቛኋ न किरनቤኔ किकी दिशቛኋ मम न्यቛኋयቛኋलय दቛኋरቛኋ कवरधसम्मत आदिቤኔश पቛኋररत ककियቛኋ जቛኋएगቛኋ। प्ቔቛኋवलनी वቛኋस्तቤኔ सफቛኋई सቛኋቌኚय कदिनቛኋाሲकि 30.05.2024 कियो पቤኔश हयो।"

¶4Vide order dated 06.06.2024, the trial court closed the opportunity to examine Vinay Kumar Pathak. The operative of the same reads as under: "्ቚस्ततुत प्ቔቛኋवलनी मम मቛኋनननीय उच्चि न्यቛኋयቛኋलय दቛኋरቛኋ ्ቚस्ततुत वቛኋदि किቤኔ त्वररत कनस्तቛኋरण हቤኔततु आदिቤኔश पቛኋररत ककियቛኋ गयቛኋ हहै। प्ቔቛኋवलनी किቤኔ पररशनीलन सቤኔ कवकदित हयोतቛኋ हहै ककि ्ቚस्ततुत वቛኋदि मम कदिनቛኋाሲकि 01.06.23 01.06.230 कियो कियो अकभियतु्ሹ किቛኋ बयቛኋन अन्तगरत धቛኋरቛኋ-313 न्यቛኋयቛኋल सቛኋቌኚय किቤኔ स्तर पर प्ቔቛኋवलनी मम दिाሲ०्ቚ०साሲ०अाሲककित ककियቛኋ गयቛኋ थቛኋ एवाሲ अकभियतु्ሹगण किቤኔ दቛኋरቛኋ अपनቤኔ बयቛኋन मम सफቛኋई सቛኋቌኚय ्ቚस्ततुत ककियቤኔ जቛኋनቤኔ किቛኋ किथन ककियቛኋ गयቛኋ थቛኋ। उसकिቤኔ उपरቛኋन्त सቤኔ अकभियतु्ሹगण दቛኋरቛኋ सफቛኋई सቛኋቌኚय किቤኔ स्तर पर प्ቔቛኋवलनी मम धቛኋरቛኋ 311 दिाሲ.्ቚ.साሲ किቤኔ तहत दियो ्ቚቛኋथरनቛኋप्ቔ्ቚ स्ततुत ककियቤኔ जቛኋ चितुकिቤኔ हहै, ककिन्ततु कियोई भिनी सफቛኋई सቛኋቌኚय अाሲककित नहनी किरवቛኋयቛኋ जቛኋ रहቛኋ हहै। ऐसቛኋ ्ቚतनीत हयोतቛኋ हहै ककि अकभियतु्ሹगण मቛኋ्ቔ वቛኋदि किकी किቛኋयरवቛኋहनी कियो लसम्बत रखनቛኋ चिቛኋहतቤኔ हहै एवाሲ उनकिቤኔ दቛኋरቛኋ मቛኋनननीय उच्चि न्यቛኋयቛኋलय किቤኔ आदिቤኔश किቛኋ अनतुपቛኋलन सतुकनसश्चित किरवቛኋयቤኔ जቛኋनቤኔ मम ककिसनी ्ቚकिቛኋर किቛኋ सहययोग नहनी ककियቛኋ जቛኋ रहቛኋ हहै। अततः न्यቛኋयቛኋलय किቤኔ आदिቤኔश कदिनቛኋाሲककित-05.06.2024 किቤኔ ्ቚकिቛኋश मम सቛኋቌኌनी कवनय कितुमቛኋर पቛኋठकि कियो परनीकቌኌत किरवቛኋनቤኔ किቛኋ अवसर समቛኋ्቎ ककियቛኋ जቛኋतቛኋ हहै। अकभियतु्ሹगण कियो आदिቤኔकशत ककियቛኋ जቛኋतቛኋ हहै ककि वቤኔ अकቇኌम कनयत कतरथ तकि यकदि कियोई सफቛኋई सቛኋቌኚय हयो, तयो ्ቚस्ततुत किरनቛኋ सतुकनसश्चित किरम, अन्यथቛኋ किकी दिशቛኋ मम प्ቔቛኋवलनी बहस हቤኔततु कनयत किर दिनी जቛኋयቤኔगनी। प्ቔቛኋवलनी वቛኋस्तቤኔ शቤኔष सफቛኋई सቛኋቌኚय कदिनቛኋाሲकि-21.06.24 कियो पቤኔश हयो।"

¶5Brief facts of the case, which are relevant, are to the effect that an F.I.R. was lodged as Case Crime No. 19/18, under Section 498-A, 323, 504, 506 I.P.C. and Section 3/4 Dowry Prohibition Act, at Police Station-Mahila Thana Gauriganj, District-Amethi implicating the applicant (husband of the informant) and three other persons namely Smt. Neelam Pathak (mother-in-law), Sri Sheetala Pathak (father-in-law) and Sri Shashank Pathak (brother-in-law). After investigation, the charge sheet(s) i.e. charge sheet No. 32 of 2018 against the accused-applicant and charge sheet No. 32-A of 2018 against Shashank Pathak and Neelam Pathak, were submitted and the trial court took cognizance and summoned the accused. Thereafter, the trial court framed charges against the accused under Section 498-A, 323, 504, 506 I.P.C. and Section 3/4 Dowry Prohibition Act, which were read over to the accused and upon denial, the accused were put to trial.

¶6The charge sheet No. 32 of 2018 indicates 12 witnesses including Vinay Kumar Pathak and charge sheet No. 32-A of 2018 indicates 16 witnesses including Vinay Kumar Pathak and Kanak Lata Singh but the prosecution to support its case produced three witnesses of the facts namely Shikha Pathak (P.W.-1), Savita Pandey (P.W.-2) and Ashok Kumar Pandey (P.W.-3). The statements of formal witnesses of the prosecution were also recorded.

¶7After completion of evidence of prosecution, date was fixed for recording of statement of accused in terms of Section 313 CrPC and the statement of the accused-applicant was also recorded on 01.05.2023 as appears from the impugned order dated 18.05.2024.

¶8After recording of statement of accused-applicant in terms of Section 313 CrPC, the applicant preferred an application dated 19.09.2023 under Section 311 CrPC for summoning two persons as witness namely Vinay Kumar Pathak and Kanak Lata Singh.

¶9It would be apt to indicate that from a perusal of the statement(s) of above-named witnesses recorded during investigation by the investigating officer, which are part of record, it is apparent that Vinay Kumar Pathak is friend of the accused-applicant and Kanak Lata Singh is neighbour of the accused-applicant and as per her statement, she is also the sister-in-law of the accused-applicant.

¶10The application aforesaid was allowed by the trial court in part on

18.05.2024, whereby permitted the defence to examine Vinay Kumar Pathak and directed the accused to produce this witness on the next date fixed i.e.

30.05.2024, the operative portion of which has already been quoted above.

¶11The case was fixed in terms of order dated 18.05.2024, on 30.05.2024.

¶12On 30.05.2024, witness namely Vinay Kumar Pathak could not be examined and in this regard neither reasons has been disclosed in the present application, nor the order sheet has been annexed and to the view of this Court, this is nothing but material concealment on behalf of the accused-applicant.

¶13It appears from the impugned order dated 06.06.2024 that on 30.05.2024, the case was adjourned to 05.06.2024 and on 05.06.2024 an application by the defence was preferred for adjournment of the case, though the date was fixed for examination of the witness who was before the trial court in terms of order dated

18.05.2024 passed by the trial court on the application preferred by the defence under Section 311 CrPC.

¶14The trial court taking note of the judgment and order of this Court dated

25.07.2022 passed in Application U/S 483 No. 291 of 2022 (Shikha Pathak Vs. State of U.P. and Others), whereby in exercise of powers under Section 483 CrPC this Court had directed the trial court to conclude the trial expeditiously without granting unnecessary or long adjournment to either of the parties, allowed the application dated 05.06.2024 seeking adjournment on cost of Rs. 1000/- and fixed 06.06.2024 for recording of statement of Vinay Kumar Pathak, who was to be examined in terms of order dated 18.05.2024 passed by the trial court on an application preferred by the defence under Section 311 CrPC.

¶15Again, on 06.06.2024, the defence preferred an application for adjournment and the trial court after considering the entire facts of the case including the judgment of this Court dated 25.07.2022 closed the opportunity of the defence to examine the witnesses namely Vinay Kumar Pathak.

¶16Counsel for the applicant while impeaching both the orders, indicated above, stated that it was the duty of the prosecution to examine the witness who was called upon/ summoned by the trial court on the application preferred under Section 311 CrPC by the accused and as such the order dated 06.06.2024 is liable to be interfered with and be set aside and the trial court be directed to examine the witness first by the prosecution i.e. D.G.C. or A.D.G.C., as the case may be, and thereafter opportunity may be provided to the defence to cross examination. In regard to order dated 18.05.2024, it is stated that trial in partly allowing the application of the defence filed under Section 311 CrPC erred in law according to which the defence should be provided adequate opportunity to prove its case.

¶17In support of his contention, counsel for the applicant placed reliance on a judgment rendered by the High Court of Madhya Pradesh in S.R.S. Yadav Vs. State of Madhya Pradesh reported in 1997 SCC OnLine MP 341: Cri LJ 3860. The relevant paras of the said judgment are extracted hereunder: "2. The facts in brief in this case are as under: It is not disputed that the prosecution in the list of witnesses has named two witnesses. These are: (1) Chatur Singh son of Mannu Singh Kamria and (2) Gajraj Singh son of Mannu Singh Kamria. These witnesses were not examined by the prosecution. The accused moved an application and prayed that these two witnesses be treated as "Court Witnesses'. This petition has been allowed. It is against the above order, the present petition has been filed.

¶11In the present case, as indicated above, two of the witnesses, namely: (1) Chatur Singh son of Mannu Singh Kamria and (2) Gajraj Singh son of Mannu Singh Kamria were cited as prosecution witnesses. They were not produced by the prosecution. The accused gave an application for examining them as Court witnesses. That prayer of the accused has been allowed by the Court below in the interest of justice.

¶12I am of the opinion, that both the parties would be at liberty to cross examine the witnesses and the requisite safeguards contemplated by law are available to both the sides. The discretion exercised by the Court below in the interest of justice cannot be said to be such which calls for any interference by this Court. This petition is accordingly found to be without merit and is dismissed."

¶18It would be apt to indicate at this stage that in case relied upon by the counsel for the applicant the prayer was made from the side of defence to treat the prosecution witness as 'court witness', and taking note of the prayers sought by the accused in the case of S.R.S. Yadav (supra), the High Court of Madhya Pradesh dismissed the petition challenging the order, whereby the trial court treated the witness as court witness as would appear from the above quoted paras of the judgment passed in the case of S.R.S. Yadav (supra).

¶19In the instant case, the applicant has not made such type of prayer as would appear from the contents of the application under Section 311 CrPC preferred by the defence on 19.09.2023, which are extracted hereunder: "महयोदिय, सकवनय कनवቤኔदिन हहै ककि उपरयो्ሹ अकभिययोग मम ्ቚቛኋथर अकभियतु्ሹ बनቛኋयቛኋ गयቛኋ हहै। उ्ሹ प्ቔቛኋवलनी आज सफቛኋई सቛኋቌኚय हቤኔततु शनीमቛኋन जनी किቤኔ समቌኌ कनयत हहै। उपरयो्ሹ अकभिययोग मቤኔ दिमौरቛኋन कववቤኔचिनቛኋ कववቤኔचिनቛኋरधकिቛኋरनी दቛኋरቛኋ कदिनቛኋाሲकि

28.09.2018 कियो सनी०डिनी०र०-अ्቗म मቤኔ स्वताሲ्ቔ सቛኋቌኌनी किቤኔ रूप मቤኔ गवቛኋह कवनय कितुमቛኋर पቛኋठकि पतु्ቔ मቛኋतቛኋ ्ቚसቛኋदि पቛኋठकि कनवቛኋसनी ቇኌቛኋम भिगनपतुर पयो० अमቤኔठनी थቛኋनቛኋ मतुाሲशनीगाሲज जनपदि अमቤኔठनी व कदिनቛኋाሲकि 04.11.2018 कियो एससनीडिनी नाሲ०-ततृतनीय मቤኔ किनकिलतቛኋ रसाሲह पत्ननी ्ቚभिቛኋकिर रसाሲह कनवቛኋसनी ቇኌቛኋम व पयो० मቤኔकडियቛኋ थቛኋनቛኋ चितुनቛኋर रजलቛኋ कमजቛኋरपतुर किቛኋ बयቛኋन अ० धቛኋरቛኋ 161 जቛኋ०फमौ० अाሲककित ककियቛኋ गयቛኋ हहै और अकभिययोजन सቛኋቌኌनी साሲख्यቛኋ-4 (चिቛኋर) आई०ओ० किቤኔ कदिनቛኋाሲकि 06.01.2023 कियो मቛኋ० न्यቛኋयቛኋलय किቤኔ समቌኌ मतुख्य परनीቌኌቛኋ किቤኔ बयቛኋन मम पቤኔज नाሲ02 पर भिनी अाሲककित हहै ककि कदिनቛኋाሲकि 28.07.12 कियो पचिቛኋर नाሲ0-अ्቗म मቤኔ बयቛኋन स्वताሲ्ቔ सቛኋቌኌनी कदिलनीप कितुमቛኋर कमशቛኋ व कवनय कितुमቛኋर पቛኋठकि किቛኋ बयቛኋन अाሲककित ककियቛኋ गयቛኋ हहै। कदिनቛኋाሲकि 04.11.2018 कियो एससनीडिनी नाሲ० ततृतनीय मम उकलरखत हहै ककि स्वताሲ्ቔ सቛኋቌኌनी किनकिलतቛኋ रसाሲह किቛኋ बयቛኋन अ० धቛኋरቛኋ 161 जቛኋ०फमौ० दिजर ककियቛኋ गयቛኋ हहै। तथቛኋ अकभिययोजन सቛኋቌኌनी साሲख्यቛኋ एकि (पनी०डिब्ल्यजू04) किरथत पनीकडितቛኋ/ वቛኋकदिननी कशखቛኋ पቛኋठकि किቤኔ मቛኋ० न्यቛኋयቛኋलय किቤኔ समቌኌ मतुख्य परनीቌኌቛኋ बयቛኋन मम भिनी किरथत घटनቛኋस्थल पर कवनय कितुमቛኋर पቛኋठकि किकी ममौजजूदिगनी बतቛኋयनी गयनी हहै उपरयो्ሹ प्ቔቛኋवलनी मቤኔ जयो भिनी अकभिययोजन सቛኋቌኌनी (फहैक्ट) मቛኋ० न्यቛኋयቛኋलय किቤኔ समቌኌ परनीकቌኌत हहए हहै वह पनीकडितቛኋ तथቛኋ पनीकडितቛኋ किቤኔ मቛኋतቛኋ कपतቛኋ हहै और उपरयो्ሹ अकभिययोग मቤኔ ककिसनी भिनी स्वताሲ्ቔ सቛኋቌኌनी कियो अकभिययोजन पቌኌ दቛኋरቛኋ पቤኔश नहीሻ ककियቛኋ गयቛኋ हहै ऐसनी सस्थकत मम न्यቛኋय किቤኔ असन्तम कबन्दितु तकि पहहाሲचिनቤኔ किቤኔ रलए उपरयो्ሹ स्वताሲ्ቔ सቛኋቌኌनी कवनय कितुमቛኋर पቛኋठकि व किनकिलतቛኋ रसाሲह कियो तलब किर मቛኋ० न्यቛኋयቛኋलय किቤኔ समቌኌ परनीकቌኌत हयोनቛኋ कवरध सम्मत व न्यቛኋययोकचित तथቛኋ न्यቛኋयसाሲगत हहै। अततः शनीमቛኋन जनी सቤኔ कनवቤኔदिन हहै ककि उपरयो्ሹ अकभिययोग मቤኔ स्वताሲ्ቔ सቛኋቌኌनी कवनय कितुमቛኋर पቛኋठकि व किनकिलतቛኋ रसाሲह कियो तलब किरनቤኔ किकी कितृपቛኋ किकी जቛኋय।"

¶20In view of the aforesaid, the judgment passed in the case of S.R.S. Yadav (supra) would not apply in this case.

¶21Sri Ajai Kumar Srivastava, learned A.G.A. for the State and Sri Siddhartha Sinha, counsel for the opposite party No. 2 stated that the submissions of the counsel for the applicant are completely baseless, bogus and fallacious for the reason that the prosecution only produced three witnesses of the fact namely Shikha Pathak, Savita Padey and Ashok Kumar Pandey and other witnesses were formal witnesses and thereafter the trial court proceeded in the trial and the date was fixed for recording the statement of accused in terms of Section 313 CrPC which were recorded on 01.05,2023 and after delay of about four months on 19.09.2023, application was preferred by the defence under Section 311 CrPC for summoning of witnesses, which was partly allowed to the extent of Vinay Kumar Pathak, and in these circumstances of the case, this witness should be treated as defence witness and in this view of the matter, the defence was under obligation to examine Vinay Kumar Pathak and thereafter this witness, if required, could be examined by the prosecution.

¶22In support of the contention that Vinay Kumar Pathak should be treated as defence witness, the reliance has been placed on the judgment passed by Hon'ble Apex Court in the case of Sunderlal Vs. State of U.P. and another reported in 2024 SC 112, which reads as under:- "1. Leave granted.

¶2The question which arises for consideration in this appeal is as to whether a witness which has been shown in the prosecution list but not examined on behalf of the prosecution, can be permitted to be examined as a defence witness.

¶3In our considered view, both the Courts are wrong in declining the request of the appellant, as factually, the witness sought to be examined on the side of the defence has not been examined by the prosecution. In other words, the prosecution has consequentially chosen to discharge the said witness and, therefore, he has not been put in the witness box to depose on behalf of the prosecution.

¶4In such view of the matter, there is no bar in the law for examining the said witness as defence witness. After all, it is for the Trial Court to consider the evidentiary value of the said witness while coming to its conclusion.

¶5Accordingly, the impugned order passed by the High Court confirming the order passed by the Trial Court stands set aside.

¶6Consequently, the appeal stands allowed. The appellant is permitted to examine the prosecution witness as defence witness. Needless to state that it is well open to the prosecution to cross-examine the said witness.

¶7Pending application(s), if any, shall stand disposed of."

¶23Further submission is that the provisions of Section(s) 233 and/or Section 311 CrPC, in which witness can be summoned, cannot be made as a tool to delay the trial. In the instant case, there is already an order of this Court dated

25.07.2022 for expeditious conclusion of trial and in this case, application was preferred after a delay of about four months, after recording of statement under Section 313 CrPC, which was allowed on 18.05.2024, and thereafter on two occasions, the case was adjourned i.e. on 30.05.2024 and on 05.06.2024 and on

06.06.2024 again, adjournment was sought from the side of defence and these facts indicates that the accused-applicant is using the provisions as envisaged under CrPC, indicated above, just to delay the trial which is impermissible in law and this practice has been deprecated in various pronouncements.

¶24Side opposite further submitted that the defence preferred two applications under Section 311 Cr.P.C. but the witness concerned was not examined and the trial court after considering entire facts of the case observed that the intention of the defence/accused is just to delay the trial and thereafter rejected the application for adjournment as also closed the opportunity to examine the witness namely Vinay Kumar Pathak.

¶25It is also stated that the order of the trial court dated 18.05.2024 is just and proper as the trial court after considering the relevant facts, particularly the contents of the F.I.R. lodged by the PW-1/ victim (wife) permitted the defence to examine Vinay Kumar Pathak.

¶26Lastly, it is submitted that in the facts and circumstances of the case, the present application is liable to be dismissed.

¶27Considering the aforesaid and perused the record.

¶28So far as the impugned order dated 18.05.2024 is concerned, the Court is of the view that the trial court has not committed any error. It is for the reason that it appears that the trial court duly considered the material available on record including the contents of F.I.R. lodged by PW-1/ Shikha Pathak according to which Vinay Kumar Pathak was present at the time of incident and therefore the trial court observed that Vinay Kumar Pathak is relevant witness and Kanak Lata Singh is not the relevant witness.

¶29In regard to impugned order dated 06.06,2024, this Court considered the following facts:

(i) On 01.05.2023, the statements of accused were recorded in terms of Section 313 Cr.P.C. but final judgment could not be passed after hearing learned counsel for the parties in reasonable time and in this regard, reasons have not been disclosed in the present application.

(ii) On 19.09.2023, the defence preferred an application under Section 311 Cr.P.C., which was partly allowed and the defence was directed to produce Vinay Kumar Pathak as witness in terms of prayers sought in the application, quoted above, wherein it has not been stated or prayed that the witness Vinay Kumar Pathak be treated as court witness.

(iii) On the date fixed in the matter i.e. on 30.05.2024, this witness was not examined.

(iv) On 05.06.2024, this witness was again not examined and application for adjournment was moved.

(v) Again, on 06.06.2024, when the impugned order was passed closing the opportunity to examine the witness, an adjournment application was preferred.

(vi) The defence was under obligation to examine the witness.

(vii) Dilatory tactics adopted by the defence which includes preferring two applications under Section 311 Cr.P.C.

(viii) From the aforesaid, this Court finds that the applicant is avoiding the conclusion of trial and adopting dilatory tactics and using provisions of Cr.P.C. as a tool to delay the trial.

¶30This Court also took note of the pronouncement(s) of the Hon'ble Apex Court on the subject.

¶31In the case of State of Haryana v. Ram Mehar, (2016) 8 SCC 762, the Hon'ble Supreme Court has observed as under: - "23. In Bablu Kumar v. State of Bihar, (2015) 8 SCC 787 the Court referred to the authorities in Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi),

(2010) 6 SCC, Rattiram v. State of Madhya Pradesh, (2012) 4 SCC 516, J. Jayalalithaa v. State of Karnataka, (2014) 2 SCC 401, State of Karnataka v. K. Yarappa Reddy, (1999) 8 SCC 715 and other decisions and came to hold that keeping in view the concept of fair trial, the obligation of the prosecution, the interest of the community and the duty of the court, it can irrefragably be stated that the court cannot be a silent spectator or a mute observer when it presides over a trial. It is the duty of the court to see that neither the prosecution nor the accused play truancy with the criminal trial or corrode the sanctity of the proceeding. They cannot expropriate or hijack the community interest by conducting themselves in such a manner as a consequence of which the trial becomes a farcical one. It has been further stated that the law does not countenance a "mock trial". It is a serious concern of society. Every member of the collective has an inherent interest in such a trial. No one can be allowed to create a dent in the same. The court is duty-bound to see that neither the prosecution nor the defence takes unnecessary adjournments and take the trial under their control. We may note with profit though the context was different, yet the message is writ large. The message is all kinds of individual notions of fair trial have no room"." "38. At this juncture, we think it apt to state that the exercise of power under Section 311 Cr.P.C. can be sought to be invoked either by the prosecution or by the accused persons or by the Court itself. The High Court has been moved by the ground that the accused persons are in the custody and the concept of speedy trial is not nullified and no prejudice is caused, and, therefore, the principle of magnanimity should apply. Suffice it to say, a criminal trial does not singularly centres around the accused. In it there is involvement of the prosecution, the victim and the victim represents the collective. The cry of the collective may not be uttered in decibels which is physically audible in the court premises, but the Court has to remain sensitive to such silent cries and the agonies, for the society seeks justice. Therefore, a balance has to be struck. We have already explained the use of the words "magnanimous approach" and how it should be understood. Regard being had to the concept of balance, and weighing the factual score on the scale of balance, we are of the convinced opinion that the High Court has fallen into absolute error in axing the order passed by the learned trial Judge. If we allow ourselves to say, when the concept of fair trial is limitlessly stretched, having no boundaries, the orders like the present one may fall in the arena of sanctuary of errors. Hence, we reiterate the necessity of doctrine of balance"."

¶32In the case of Mohd. Khalid v. State of West Bengal, (2002) 7 SCC 334 the Hon'ble Apex Court has observed as under: - "Before parting with the case, we may point out that the Designated Court deferred the cross-examination of the witnesses for a long time. That is a feature which is being noticed in many cases. Unnecessary adjournments give a scope for a grievance that the accused persons get a time to get over the witnesses. Whatever be the truth in this allegation, the fact remains that such adjournments lack the spirit of Section 309 of the Code. When a witness is available and his examination-in-chief is over, unless compelling reasons arc there, the Trial Court should not adjourn the matter on the mere asking. These aspects were highlighted by this Court in State of U.P. v. Shambhu Nath Singh, (2001) 4 SCC 667 and N.G. Dastane v. Shrikant Shivde, (2001) 6 SCC 135. In the case of State of U.P. v. Shambhu Nath Singh, (2001) 4 SCC 667, this Court deprecated the practice of Courts adjourning cases without examination of witnesses when they are in attendance with the following observations: - "9. We make it abundantly clear that if a witness is present in Court he must be examined on that day. The Court must know that most of the witnesses could attend the Court only at heavy cost to them, after keeping aside their own avocation. Certainly-they incur suffering and loss of income. The meagre amount of bhatta (allowance) which a witness may be paid by the Court is generally a poor solace for the financial loss incurred by him. It is a said plight in the Trial Courts that witnesses who are called through summons or other processes stand at a doorstep from morning till evening only to be told at the end of the day that the case is adjourned to another day. This primitive practice must be reformed by every one provided the presiding officer concerned has a commitment towards duty. No sadistic pleasure, in seeing how other persons summoned by him as witnesses are standard on account of the dimension of his judicial powers, can be a persuading factor for granting such adjournments lavishly, that too in a casual manner."

¶33Upon due consideration of the facts and reasons indicated above as also the observations of the Hon'ble Apex Court in the judgments referred above, this Court is of the view that no interference in the order dated 06.06.2024 is required.

¶34In view of the aforesaid, this Court finds no force in the present application. It is accordingly dismissed. Cost made easy. Order Date :- 3.7.2024 (Manoj K.) High Court of Judicature at Allahabad, Lucknow Bench