Allahabad High Court
Sukhwant Singh vs State Of U.P. on 15 October, 2020
Author: Rajeev Singh
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Court No.11 Case :- U/S 482/378/407 No. - 5824 of 2019 Applicant :- Sukhwant Singh Opposite Party :- State of U.P. Counsel for Applicant :- Mrs.Suniti Sachan Counsel for Opposite Party :- Govt. Advocate,Avinash Singh,Sameer Kalia Hon'ble Rajeev Singh,J.
(C.M. Application No.33808 of 2020) This is an application for condonation of delay in filing the application for recall of the order dated 06.09.2019 passed by this Court.
The copy of the aforesaid application was provided to the learned counsel for the complainant, but he does not choose to file any objection.
Accordingly, the delay in filling the application for recall is hereby condoned.
Order Date :- 15.10.2020 S. Shivhare/-
Court No.11 Case :- U/S 482/378/407 No. - 5824 of 2019 Applicant :- Sukhwant Singh Opposite Party :- State of U.P. Counsel for Applicant :- Mrs.Suniti Sachan Counsel for Opposite Party :- Govt. Advocate,Avinash Singh,Sameer Kalia Hon'ble Rajeev Singh,J.
(C.M. Application No.33798 of 2020) This is an application for impleadment with a prayer to implead the applicant of the instant application as opposite party No.2 in the petition under Section 482 Cr.P.C.
The impleadment application is hereby rejected.
Order Date :- 15.10.2020.
S. Shivhare/-
Reserved Court No.11 Case :- U/S 482/378/407 No. - 5824 of 2019 Applicant :- Sukhwant Singh Opposite Party :- State of U.P. Counsel for Applicant :- Mrs.Suniti Sachan Counsel for Opposite Party :- Govt. Advocate,Avinash Singh,Sameer Kalia Hon'ble Rajeev Singh,J.
(C.M. Application No.33792 of 2020)
1. Heard learned counsel for the applicant Mrs. Suniti Sachan as well as learned A.G.A., Mr. Aniruddh Kumar Singh and perused the record.
2. This application has been filed for recall of the order dated 06.09.2019 passed by this Court in Sessions Trial No.25 of 2018 arising out of Case Crime No.373 of 2017, under Sections 302 & 307 I.P.C. r/w Section 34 I.P.C., P.S. Maigalganj, District Kheri.
3. Learned counsel for the accused-applicant has submitted that the applicant namely Angrej Singh is the co-accused of Sessions Trial No.25 of 2010 (State vs. Angrej Singh and Others) and presently he is in jail and the other co-accused of the aforesaid case are on bail. He further submitted that the Case Crime No.373 of 2017, under Sections 147, 148, 149, 307, 302 I.P.C., P.S. Maigalganj, District Kheri was lodged by Sukhwant Singh on 06.10.2017 naming six persons with the allegation that the accused persons killed Dhramendra Singh S/o Shukhwant Singh by causing fire arm injury and in the said incident, complainant also received injuries. Thereafter, the charge sheet was filed by the Investigating Officer under Sections 302, 307 I.P.C. r/w 34 I.P.C. against the accused persons and the case was committed to the court of session, where it was registered as Sessions Trial No.25 of 2018 and the charge was framed on 30.01.2019.
4. Learned counsel for the accused-applicant has further submitted that the trial of Sessions Trial No.25 of 2018 was going on and the applicant -Angrej Singh is confined in jail since the year 2017 but the aforesiad trial could not be concluded, not on the fault of the accused persons but only on the fault of the prosecution. In the meantime, the complainant filed application under Section 482 Cr.P.C. on the basis of misleading facts that the accused persons are taking unnecessary adjournments and that is only to cause delay in conclusion of the trial. He further submitted that accused persons are not arrayed as the opposite parties in the present petition and the petition was disposed of vide order dated 06.09.2019 without hearing the accused persons with a direction to the court below to conclude that the trial of S.T. No. 25 of 2018 (supra) expeditiously, preferably, within a period of six months from the date of production of certified copy of this order; without granting any unnecessary adjournment to any party and if adjournment is inevitable then it may be subject to heavy cost and for short dates.
5. Learned counsel for the accused-applicant has further submitted that learned counsel for the complainant placed misleading facts before this Court and no time bound direction for trial can be issued, therefore, the order dated 06.09.2019 is liable to be recalled and petition is to be dismissed. He relied on the decisions of Hon'ble Supreme Court on the point of fixing of time frame for conclusion of proceedings i.e. Abdul Rehman Antulay & Others vs. R.S. Nayak & Another reported in 1992 1 SCC 225 and P. Ramchandra Rao vs. State of Karnataka reported in 2002 4 SCC 578; on the point that party appearing the court must come with clean hands i.e. Prestige Lights Ltd. vs. State Bank of India reported in 2007 8 SCC 449, K.D. Sharma vs. Steel Authority of India Ltd. & Others reported in 2008 12 SCC 481 and Dalip Singh vs. State of U.P. & Others reported in 2010 2 SCC 14; on the point of maintanability of the present application i.e. State of Punjab vs Davinder Pal Singh Bhullar reported in 2011 14 SCC 770 and New India Assurance Co. Ltd. vs. Krishna Kumar Pandey reported in 2019 SCC Online SC 1786.
6. Learned A.G.A. as well as learned counsel for the complainant opposes the prayer of accused-applicant for recall of the order dated 06.09.2019 and submitted that it is the bound duty of the trial court to counsider the provisions of Section 309 of Cr.P.C. to conclude the trial when one accused is in jail and there is no illegality in the aforesaid order passed by this Court.
7. Learned counsel for the complainant-petitioner has further submitted that accused-applicant was not co-operating in the case, therefore, the trial was expedited, as the presesnt applicant is in jail since 2017. She further submitted that in the case in question, son of the complainant was killed by the accused persons and in the said incident, complainant also received injuries, thereafter, the charge sheet was filed by the Investigating Officer and the case was committed to the court of session, where it was registered as Sessions Trial No.25 of 2018. She further submitted that on 15.01.2019, an application was moved before the trial court by the petitioner (copy of the application is appended as annexure No.4 to the petition), in which a request was made to the trial court for framing of charge and recording the statement of witnesses, on the ground that the accused persons are trying to make pressure for compromise and the victim's family is in threat, thereafter, the charge was framed on 30.01.2019 and summons were issued to the witnesses, but the prosecution failed to produce them before the trial court, as a result, the case was adjourned. Thereafter, in the month of August, 2019, the petition was filed before this Court with a request to direct the trial court for expeditious disposal of the trial considering the provisions of Section 309(1) Cr.P.C., which clearly provides that trial of the proceedings shall be conducted on day to day basis unless all the witnesses are not examined.
8. Learned counsel for the complainant has further submitted that after considering the gravity of the case in question, order dated 06.09.2019 was passed by this Court and a direction was issued to the court below to conclude the trial of S.T. No. 25 of 2018 (supra) expeditiously, preferably, within a period of six months from the date of production of certified copy of this order; without granting any unnecessary adjournment to any party and if adjournment is inevitable then it may be subject to heavy cost and for short dates. She further submitted that the aforesaid order was passed in the month of September, 2019 and now we are in the month of September, 2020 (almost one year has been passed). She further submitted that due to Covid-19 pandemic lock-down, conclusion of trial was not possible, even then, the statement of P.W.1 (complainant of the case) is concluded and part examination of P.W.2 namely Amrendra Singh is concluded. In such circumstances, the present application is misconceived and the same is liable to be dismissed.
9. Considering the arguments of learned counsel for the accused-applicant, learned A.G.A. as well as learned counsel for the complainant-petitioner and going through the records, it is evident that the Case Crime No.373 of 2017 (supra) was lodged by the complainant against the 6 persons, being a injured witness as his son was killed by the accused persons, after investigation charge sheet was filed against the accused persons and after taking cognizance, the case was committed in the year 2018 and summons were issued for hearing on the charge on 10.08.2018 , thereafter, proceedings of the trial was deferred on one or other grounds and on 15.01.2019, complainant moved an application for framing of the charge and also recorded the statement of witnesses and also stated that he is being pressurised for compromise and is also having life threat, therefore, his statement may also be recorded and security may also be given to his family. Thereafter, on 30.01.2019, charge was framed but trial was deferred either for non-production of the accused person from jail or on other grounds, as it is evident from the record that at number of times, the accused Angrej Singh was not produced before the trial court, therefore, the case was deferred, then in the month of August, the present petition was filed before this Court. Thereafter, considering the gravity of the case and provisions of Section 309 Cr.P.C., this Court issued a direction to the trial court for expeditious disposal of the trial, preferably, within a period of six months from the date of production of certified copy of this order; without granting any unnecessary adjournment to any party and if adjournment is inevitable then it may be subject to heavy cost and for short dates.
It is also evident that the learned counsel for the applicant-accused relied on the decisions of Hon'ble Supreme Court in the case of Abdul Rehman Antulay & Others vs. R.S. Nayak & Another (supra) and P. Ramchandra Rao vs. State of Karnataka (supra) that it is neither advisable nor feasible nor judicially permissible for fixing the time frame for conclusion of criminal proceedings, but it is open by the Hon'ble Apex Court that the High Court should exercise the available powers given under Sections 309, 311 and 258 of Cr.P.C. to effectuate the right to speedy trial and it is also open that in appropriate cases, appropriate relief or suitable directions can be issued by the High Court under Section 482 Cr.P.C. and under Articles 226 and 227 of the Constituion of India, as in the present case, the complainant made an application on 15.01.2019 before the trial court and requested for framing of charge and recording the statement of witnesses, as the complainant is the injured witness and he is being pressurised for compromise and also given a life threat, therefore, he also requested for providing security to his family, in such circumstances, it would be a fit case to issue a direction to the subordinate court to conclude the trial expeditiously considering the provisions of Section 309 Cr.P.C.; learned counsel for the applicant also relied on the decision of Hon'ble Supreme Court in the case of Prestige Lights Ltd. vs. State Bank of India (supra), K.D. Sharma vs. Steel Authority of India Ltd. & Others (supra) and Dalip Singh vs. State of U.P. & Others (supra) that the party appearing before the court must come with clean hands and put forward all facts and correct facts without concealing or suppressing, as in the present case, the petitioner stated that adjournments were taken by the accused, therefore, the direction issued by this Court was obtained by giving misleading facts as it is evident from the order sheet (appended with the petition) that the applicant-accused Angrej Singh was not being produced from the jail, therefore, adjournments were granted by the trial court, in such circumstances, it cannot be said that misleading statement was made by the petitioner in the petition as it is undisputed that the order passed can be recalled by a criminal court, in case, the same has been passed without jurisdiction or in violation of principles of natural justice or where the order has been passed without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 Cr.P.C. would not operate; in the present case as per the provisions of Section 309 Cr.P.C., it is obligatory on the part of the trial court to proceed the trial of the case expeditiously as possbile and in particular, when the examination of witnesses once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the court finds the adjourment of the same beyond the following day to be necessary for reasons to be recorded, as it is evident from the order sheet that dates were being fixed by the trial court but the State authorities were not co-operating for production of the witness or accused from the jail custody, in such circumstances, it is the duty of the court as held by the Hon'ble Supreme Court in the case of P. Ramchandra Rao vs. State of Karnataka (supra) in para No. 29(5) that in appropriate cases, jurisdiction of the High Court under Section 482 Cr.P.C. and Articles 226 and 227 of the Constitution of India can be invoked seeking appropriate relief or suitable directions.
10. Considering the above mentioned facts and circumstances of the case, it is evident that the petitioner-complainant is the injured witness and his statement was not being recorded as the accused Angrej Singh was not being produced before the trial court by the District authorities/jail authorities, in such circumstances, there is no illegality in the order dated 06.09.2019 passed by this Court.
11. Accordingly, the application is hereby rejected.
12. As the direction was issued by this Court for disposal of the aforesaid trial preferably within 6 months, as the statement of 2 witnesses were recorded. In the meantime, due to Covid-19 pandemic, regular court proceedings was not possible and the aforesaid trial was not concluded, therefore, the trial Judge has sent a request on 13.08.2020 for extension of time period for conclusion of trial of S.T. No.25 of 2018 (the aforesaid application is available on record as C.M. Application No.48527 of 2020).
13. Considering the request of the learned trial Judge and the present Covid-19 pandemic situation as well as the provision of Section 309 Cr.P.C. and the gravity of the case, learned trial judge is directed to conclude the trial expeditiously by strictly following the provisions of Section 309(1) Cr.P.C., without granting any unnecessary adjournment to any party and if adjournment is inevitable then it must be subjected to heavy costs and for short dates.
14. The Superintendent of Police, Lakhimpur Kheri and Joint Director of Prosecution, Lakhimpur Kheri are directed to ensure the production of witnesses before the trial court for conclusion of the aforesaid trial.
15. Office is directed to communicate this order to the authority concerned for its necessary compliance.
Order Date :- 15.10.2020 S. Shivhare/-