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2018 DIGILAW 97 (ALL)

SURENDRA PATEL v. STATE OF U. P.

2018-01-10

RAJUL BHARGAVA

body2018
JUDGMENT : Hon'ble Rajul Bhargava,J. Heard Sri Shiv Babu Dubey, learned counsel for the revisionist, learned A.G.A. for the State and perused the material placed on record. 2. It is contended by the learned counsel for the revisionist that the revisionist is facing trial in S.T. No.243 of 2014 (State Versus Ram Bahori and others) under Sections 302 and 307 I.P.C., Police Station Kotwali Nagar, District Banda. It is submitted that last prosecution witness i.e. PW 11 was examined by the trial court on 5.12.2017 and the case was posted for recording statement of the accused under Section 313 Cr.P.C. on 6.12.2017. It transpires from the order-sheet of the trial court that on 6.12.2017 statement of Ram Bahori and Surendra Patel were recorded under Section 313 Cr.P.C. and the case was posted for defence evidence on 8.12.2017. On 8.12.2017 on behalf of accused, Surendra Patel who is still languishing in jail in aforesaid case, an application no.40Kha supported by documents 41Kha and 42Kha was moved. It was stated that revisionist, Surendra Patel was not present on the date of incident i.e. 14.6.2014 and had gone to Bilaspur, Chhattishgarh to appear in railway recruitment of ALP/Tech. mentioning roll number in the said application. It is further stated that in fact he had appeared in the examination on 15.6.2014 at 10.30 a.m. and was present and stayed in a Ran Basera Lodge, Station Road near Tarun Talkies, Durg from 10 a.m. on 14.6.2014. It is further stated that the trial judge without recording any reason rejected the application for examining the defence witness on the ground that the same has been made in order to delay the proceeding. 3. I have gone through the impugned order and may record that learned trial Judge rejected the application moved on behalf of the applicant for adducing defence evidence on the ground that the said application does not disclose the name of any witness, its address and other particulars on account of which the said application cannot be allowed. 3. I have gone through the impugned order and may record that learned trial Judge rejected the application moved on behalf of the applicant for adducing defence evidence on the ground that the said application does not disclose the name of any witness, its address and other particulars on account of which the said application cannot be allowed. Besides it, it appears that the trial Judge was also impressed of the fact that since in Criminal Bail Application No. 2840/2015 this Court vide order dated 12.9.2017 while refusing the bail to the applicant had directed to conclude the trial within three months and therefore the present application for adducing defence evidence has been given on his behalf in order to linger and delay the trial. It also observed that the documents furnished on behalf of the applicant are not admissible in evidence. 4. After giving anxious consideration to the facts and circumstances of the case and after going through the impugned I may record that the observations of the trial Judge to the extent that the application moved on behalf of the applicant for summoning the defence evidence to prove his documents of alibi as stated above does not disclose the name and particulars of any defence witness is correct. 5. However, the fact remains that it is consistent case of the applicant that on the date of incident, he was appearing in an examination of Railway Recruitment Board, Bilaspur, District Durg, Chattishgarh and had also brought the aforesaid documents on record. 6. In my opinion, if the said application was lacking in necessary particulars of defence witnesses, may be on account of inadvertence of counsel for the applicant, who is admittedly languishing in jail and thus, in the interest of justice the trial Judge should not have rejected the application for adducing defence on the very first date inasmuch as the statement of the applicant and co-accused were recorded u/s 313 Cr.P.C on 6.12.2017. 7. In my opinion, the trial Judge should have directed the defence counsel to provide more particulars so that the defence documents and record could be legally proved. The trial Judge seems to be more impressed with the direction of this Court to conclude trial within three months rather than affording proper opportunity to the applicant for leading defence evidence. 8. In my opinion, the trial Judge should have directed the defence counsel to provide more particulars so that the defence documents and record could be legally proved. The trial Judge seems to be more impressed with the direction of this Court to conclude trial within three months rather than affording proper opportunity to the applicant for leading defence evidence. 8. I may record that the present trial before the Additional Session Judge appears to be pending since 2014 and there is nothing in the impugned order to suggest that there was any attempt on the part of the applicant to delay the proceedings of trial. 9. It is well settled that the fair trail is main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner, fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair proper opportunity to the person concerned and the same must be ensured as this is a constitutional, as well as the human right thus, under any circumstance can a person right to fair trial be jeopardized. Adducing evidence in support of the defence is valuable right, deny of such right would amounts to be denial of fair trial. 10. Be that as it may, in the peculiar facts and circumstances of the case as the applicant has been deprived by his valuable right to adduce defence evidence. I am conscious of the fact that this Court while disposing of the bail application of the applicant had directed for conclusion of the trial within three months but at the same time the applicant cannot be deprived of his valuable right to lead defence evidence, which virtually would amount to denial of a fair trial. 11. In the light of the aforesaid, the impugned order dated 8.12.2017 is hereby set aside and the applicant is directed to move an application giving better particulars and details of the relevant witnesses who are to be examined as defence witness within one month from today. The trial Judge shall take into account the relevance of the defence evidence witnesses and shall afford opportunity to lead defence evidence to the applicant strictly in accordance with law at the earliest. 12. The trial Judge shall take into account the relevance of the defence evidence witnesses and shall afford opportunity to lead defence evidence to the applicant strictly in accordance with law at the earliest. 12. From the perusal of the record it transpires that the witnesses which the applicants wants to be examined are officials of Railway Recruitment Board South West Railway under whose aegis the recruitment examination was conducted and also the concerned officials of the examination centre where the said examination was conducted and also the Manager of the Lodge where the applicant is stated to have stayed in the night of 14.6.2014. The trial Judge shall ensure to secure attendance of the aforesaid witnesses provided the applicant furnishes relevant details of the witnesses to be examined by him. 13. It is expected that the trial Judge shall give reasonable time for leading defence evidence without unnecessary adjournment to either of the parties. 14. With the aforesaid observations, the instant revision is allowed.