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2014 DIGILAW 2846 (ALL)

DEEP NARAIN v. STATE OF U. P.

2014-09-12

RANJANA PANDYA

body2014
JUDGMENT Hon'ble Mrs. Ranjana Pandya,J. Heard Sri Viresh Mishra, Senior Advocate, assisted by Sri Ishwar Chandra Tyagi, counsel for the applicant, Sri G.S. Chaturvedi, Senior Advocate, assisted by Sri Vaibhav Kalia and Sri Rameshwar Prasad, counsel for the opposite party no. 2 and learned A.G.A. for the State. 2. The present application under Section 482 Cr.P.C. has been filed for quashing the impugned order dated 19.8.2014 passed by the Special Judge, SC/ST ACt, Mainipuri in Sessions Trial No. 245 of 2006, State Vs. Deep Narain and others, under Sections 302/34 I.P.C. Police Station Karhal, District Mainpuri arising out of Case Crime No. 92 of 2004 by which order the learned trial court dismissed the applications 84-B and 89-B moved by the defence with prayer to summon the case diary of Crime No. 90 of 2004 under Sections 307, 504 I.P.C. Police Station Karhal, Mainpuri and with the prayer to give an opportunity to the applicant to adduce defence and to summon certain documents. 3. Brief facts are that an F.I.R. was lodged against the applicant on 18.5.2004 on the allegation that on 18.5.2004 at about 5 a.m., the brother of the complainant Narain Das Dubey and wife of his brother Krishna Dubey were coming back after morning walk followed by the complainant, when they reached near the Sughar Singh Smriti Dwar, four miscreants came on motorcycle armed with weapons, they fired at the brother and bhabhi of the complainant due to which the brother of the complainant and his bhabhi died on spot. The complainant and Rajesh raised hue and cry. On this all the four miscreants including Deep Narain son of Ram Das Chaturvedi, resident of village Latohi, presently residing at Karhal fled away on the motorcycle. Deep Narain was recognized by the complainant and remaining miscreants may be recognized if they come before the complainant. Deep Narain was having inimical terms with the brother of the complainant due to politics. The report was lodged on the same day. 4. After the matter was committed, trial commenced. During trial, a Criminal Misc. Transfer Application No. 756 of 2008 was moved in the High Court and the proceedings were stayed on 22.10.2008 by the High Court. Deep Narain was having inimical terms with the brother of the complainant due to politics. The report was lodged on the same day. 4. After the matter was committed, trial commenced. During trial, a Criminal Misc. Transfer Application No. 756 of 2008 was moved in the High Court and the proceedings were stayed on 22.10.2008 by the High Court. This order was vacated by the High Court on 31.8.2009 after which the trial again commenced and an application was filed on behalf of the applicant with three prayers, i.e., to permit the defence to file copy of the newspaper published on the next date, call for the case diary of Crime No. 90 of 2004 under Section 307, 506 I.P.C. and also to call for the statement recorded in Crime No. 92 of 2004 under Section 302 I.P.C. 5. The learned trial Court on 23.10.2009 partially allowing the said application summoned the case diary relating to Crime No. 90 of 2004 and refused the remaining two prayers. Meanwhile, restoration application was filed, which was allowed by the High Court and the said order dated 31.8.2009 was recalled and again the trial was suspended after 23.10.2009 by High Court. Finally, the transfer application was dismissed for non-prosecution by the High Court on 10.3.2014 after which the trial again commenced. 6. After 10.3.2014, the applicant again moved an application before the lower court on 1.7.2014 for summoning Sub Inspector Sheeshpal and case diary of Crime No. 90 of 2004. This application was filed in fact in pursuance of earlier order dated 23.10.2009. This application was rejected by the trial court, vide order dated 19.8.2014. 7. It was argued by the applicant that this order dated 19.8.2014 resulted in review of earlier order of the trial court which was not permissible in law and the prosecution had wrongly stated before the trial court that the case diary of Crime No. 90 of 2004 P.S. Karhal was not available and was sent to the High Court. The S.T. No. 653 of 2008 (arising out of Case Crime No. 90 of 2004) was concluded on 26.4.2010. The S.T. No. 653 of 2008 (arising out of Case Crime No. 90 of 2004) was concluded on 26.4.2010. The case diary which is sought to be summoned is of utmost importance because witness Rajesh Dubey who claims to be an eye witness was also the first informant in Case Crime No. 90 of 2004, Police Station Karhal, District Mainpuri and his statement was recorded by the trial court on 22.4.2010 as P.W. 1 in Sessions Trial No. 253 of 2008 wherein he stated that he was not present in village Lahtoi in 17.5.2004. 8. It has been argued by counsel for the applicant that during the investigation of Case Crime No. 90 of 2004, the Investigating Officer, namely, Sheeshpal had recorded the statement of Rajesh Dubey on 17.5.2004 at 7 p.m. at Latohi whereas this witness claims to have come back from Latohi to town Karhal in the night of 17.5.2004. The presence of this witness is to be assailed by the defence, hence, case diary of Case Crime No. 90 of 2004 is essential, which can be perused to test the veracity of statement of Rajesh Kumar. Thus, this present application has been presented. 9. Learned counsel for the opposite party and State have argued that the only purpose of the applicant is to delay the proceedings. 10. On being confronted with this position, the counsel for the applicant argued that the accused was in jail since 2005 he has recently been granted bail by High Court on 27.3.2014, vide Criminal Misc. Bail Application No. 29821 of 2010 and the trial was held up because the High Court had stayed the proceedings of trial due to the pendency of the transfer application. The counsel for the applicant has further argued that the order dated 23.10.2009 passed by the trial court has attained finality in as much as none of the parties has filed any revision, appeal etc. and a order attaining finality cannot be looked into in the proceedings under Section 482 Cr.P.C. 11. These arguments advanced on behalf of the counsel for the applicant are not tenable in as much as the inherent power of the High court under Section 482 can be exercised to prevent the abuse of the process of the court. The provision of Section 482 reads as follows:- "482. These arguments advanced on behalf of the counsel for the applicant are not tenable in as much as the inherent power of the High court under Section 482 can be exercised to prevent the abuse of the process of the court. The provision of Section 482 reads as follows:- "482. Saving of inherent power of High Court..- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." 12. Thus, under the inherent powers of the High Court, the High Court can exercise jurisdiction suo motu in the interest of justice. It can do so while exercising other jurisdiction such as appellate or revisional jurisdiction. No formal application for invoking inherent jurisdiction is necessary. Inherent jurisdiction can be exercised in respect of substantive as well as the procedural matters. It can be as well exercised in respect of incidental or supplemental power irrespective of nature of proceedings as has been laid down in (2006)7 SCC 296 , Popular Muthiah Vs. State represented by Inspector of Police. 13. At this stage, it will be important to peruse applications moved by the applicant to produce the defence. After the order dated 23.10.2009 was passed and after the stay was finally vacated, the applicant moved another application before the trial court in which the applicant prayed that the case diary of Crime No. 90 of 2004, S.R. file and S.I Shishpal may be summoned. Now, this was a new prayer because initially neither S.R. File nor S.I. Sheeshpal were wanted to be produced by the defence. It would be noteworthy that this application was moved on 1.7.2014. Again on 22.7.2014 the applicant moved another application for summoning of defence witness stating therein that before arguments, the case diary of Crime No. 90 2004 may be summoned. Both these applications dated 1.7.2014 and 22.7.2014 were rejected by the trial court, vide order dated 19.8.2014 and the accused was directed to enter upon his defence. 14. The provision of Section 233 Cr.P.C. reads as under:- "233. Entering upon defence.- (1). Both these applications dated 1.7.2014 and 22.7.2014 were rejected by the trial court, vide order dated 19.8.2014 and the accused was directed to enter upon his defence. 14. The provision of Section 233 Cr.P.C. reads as under:- "233. Entering upon defence.- (1). Where the accused is not acquitted under Section 232 he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof. (2) If the accused puts in any written statement, the Judge shall file it with the record. (3) If 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." 15. The learned trial court, while disposing of the application of the accused, has categorically held that the applications had been moved only to delay the disposal of the case, hence, they were rejected and the case was fixed for arguments. 16. Counsel for the applicant has argued that there are two contradictory orders on the same file which cannot be permitted to stand. 17. So far as the order dated 19.8.2014 is concerned, the order shows that the case diary has been sent to the High Court and sufficient opportunity had been granted to the defence. No useful purpose would be served by summoning the case diary as the application has been moved only to delay the proceedings and, therefore, the application was rejected. As far as the order dated 23.10.2009 is concerned, it is said to be in contradiction to the order dated 19.8.2014. This order dated 23.10.2009 says that the case diary relating to Crime No. 90 of 2004 be produced by the prosecution. The trial court while passing the order dated 23.10.2009 was unaware as to where case diary relating to Case Crime No. 90 of 2004 actually was, i.e., in whose possession the case diary of Crime No. 90 of 2004 was, then how it was possible for the prosecution to produce the case diary of Case Crime No. 90 of 2009 when there was nothing on record to state as to where this case diary actually was. If, for the sake of argument, it is presumed that the case diary was not sent to the High Court even then before the case diary could be ordered to be summoned, it had to be ascertained as to where the case diary of Crime No. 90 of 2004 was, and how it could be looked into. It has been argued on behalf of the applicant that S.I. Sheeshpal had recorded the statement of witness Rajesh Dubey in Crime No. 90 of 2004 on 17.5.2004 at 7 p.m. at village Latohi. This is not the case of the applicant that on 18.5.2004 by 5 a.m. the witness could not reach the spot. Besides, a procedure has been laid down in Section 145 of the Indian Evidence Act which says that a witness may be cross-examined as to previous statements in writing. 18. Section 145 of the Indian Evidence Act reads as under:- "145. Cross-examination as to previous statements in writing.- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him." 19. In (2014) 1 SCC (Cri) 447, Chandran Ratnaswami Vs. K.C. Palaniswmy and others, the Hon'ble Apex Court has held as under:- "An abuse of process justifying the stay or quashment of prosecution could arise in the following circumstances: (i) where it would be impossible to give the accused a fair trial; or (ii) where it would amount to misuse/manipulation of process because it offends the court's sense of justice and propriety to be asked to try the accused in the circumstances of the particular case. What is unfair and wrong will be for the court to determine on the individual facts of each case. There is a growing tendency in business circles to convert purely civil disputes into criminal cases. There is an impression that civil law remedies are time-consuming and do not adequately protect the interests of lenders/creditors. What is unfair and wrong will be for the court to determine on the individual facts of each case. There is a growing tendency in business circles to convert purely civil disputes into criminal cases. There is an impression that civil law remedies are time-consuming and do not adequately protect the interests of lenders/creditors. It is the duty and obligation of the criminal court to exercise a great deal of caution in issuing the process, particularly when matters are essentially of civil nature." 20. The learned lower court committed an error in summoning the witness Sheeshpal Singh, and the case diary of Crime No. 90 of 2004. The witness Sheeshpal was not even required to be summoned by the applicant in his application and there was nothing on record by which this witness Rajesh, whose examination has already been concluded, could be contradicted. Thus, this would be futile exercise by the court. 21. This court can very well suo motu examine whether the order dated 23.10.2009 is illegal or order dated 19.8.2014 is illegal or both or anyone of the order is legal. 22. The powers under Section 482 Cr.P.C. can also be exercised suo moto to quash an illegal order and to uphold a legal order. Thus, the order passed on 23.10.2009 was illegal and could not have been passed while the order dated 19.8.2014 is justified and in the facts and circumstances of the case, the same needs no interference since the accused is changing his stand every now and then as to what defence he wants to produce and the application has been moved only to delay the disposal of the case. Thus, the order dated 23.10.2009 is liable to be quashed. 23. The application under Section 482 Cr.P.C. is disposed of accordingly. 24. The order dated 23.10.2009 passed in S.T.No. 245 of 2006 (arising out of Crime No. 92 of 2004) passed by the Special Judge, SC/ST Act, State Vs. Deep Narain and others under Sections 302/34, Police Station Karhal, District Mainpuri is quashed. 25. The learned Trial Court is directed to expedite the trial and conclude the trial within two months. ——————