Allahabad High Court
Narendra Prasad Tiwari vs State Of U.P. And Another on 5 May, 2025
Author: Sanjay Kumar Pachori
Bench: Sanjay Kumar Pachori
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:71074 Court No. - 72 Case :- APPLICATION U/S 528 BNSS No. - 12126 of 2025 Applicant :- Narendra Prasad Tiwari Opposite Party :- State of U.P. and Another Counsel for Applicant :- Manvendra Singh Counsel for Opposite Party :- G.A. Hon'ble Sanjay Kumar Pachori,J.
1. Heard Sri Manvendra Singh, learned counsel for the applicant and Sri Alok Mishra, learned A.G.A. for the State and perused material on record.
2. The present application under Section 528 of Bharatiya Nagarik Suraksha Sanhita, has been filed to quash the order dated 27.01.2025 passed by Gram Nayaylaya, Bindki, Fatehpur in Criminal Case No. 2865 of 2022 (State Vs. Narendra Prasad Tiwari) arising out of Case Crime No. 12 of 2010, under Sections 328, 304-A of I.P.C., Police Station- Chandpur, District Fatehpur, whereby an application under Section 311 of Cr.P.C. has been allowed.
3. Brief facts of the case are that in the present case autopsy surgeon Dr. P.K. Pandey was not made witness in the charge-sheet, despite the fact that there is postmortem report of the deceased. Investigating Officer is also not recorded the statement of eye witness Kallu Khan (Eye Witness), Constable Saligram Verma, (Scriber of First Information Report). The trial court closed the prosecution evidence on 25.11.2024 after observing that on 07.01.2025 application under Section 311 of Cr.P.C. has been moved by the prosecution.
4. Learned counsel for the applicant fairly admits that six prosecution witnesses (all fact witnesses) have been examined. It is fairly further admitted that witnesses like autopsy surgeon, scriber of the F.I.R., eye witness and Investigating Officer remains for examination. It is submitted that on 25.11.2024 the trial court closed the prosecution evidence, observing that the prosecution has not produced the remaining evidence and the matter is pending for trial since 2010.
5. Before considering the rival submissions of the parties, it is apposite to consider the settled position of law.
6. In Dr. Rajesh Talwar and another Vs. C.B.I. and another, (2014) 1 SCC 628, the Supreme Court considered the issue of fair trial observing in Para 10, which is as under:-
"10. This Court in Selvi J. Jayalalithaa & Ors. v. State of Karnataka & Ors. (Writ Petition (Crl.) No.154 of 2013) decided on 30.9.2013, after referring to its earlier judgments in Triveniben Vs. State of Gujarat, AIR 1989 SC 1335; Zahira Habibullah Sheikh and Another Vs. State of Gujarat and others, AIR 2006 SC 1367; Capt. Amarinder Singh Vs. Prakash Singh Badal & Ors., (2009) 6 SCC 260; Mohd. Hussain @ Julfikar Ali v. State (Govt. of NCT of Delhi), AIR 2012 SC 750; and Natasha Singh Vs. CBI (State), (2013) 5 SCC 741, dealt with the issue of fair trial observing:
Fair trial is the main object of criminal procedure and such fairness should not be hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society. Thus, fair trial must be accorded to every accused in the spirit of right to life and personal liberty and the accused must get a free and fair, just and reasonable trial on the charge imputed in a criminal case. Any breach or violation of public rights and duties adversely affects the community as a whole and it becomes harmful to the society in general. In all circumstances, the courts have a duty to maintain public confidence in the administration of justice and such duty is to vindicate and uphold the 'majesty of the law' and the courts cannot turn a blind eye to vexatious or oppressive conduct that occurs in relation to criminal proceedings.
Denial of a fair trial is as much injustice to the accused as is to the victim and the society. It necessarily requires a trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. Since the object of the trial is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities and must be conducted under such rules as will protect the innocent and punish the guilty. Justice should not only be done but should be seem to have been done. Therefore, free and fair trial is a sine qua non of Article 21 of the Constitution. Right to get a fair trial is not only a basic fundamental right but a human right also. Therefore, any hindrance in a fair trial could be violative of Article 14 of the Constitution.
xx xx xx xx xx xx xx xx Article 12 of the Universal Declaration of Human Rights provides for the right to a fair trial what is enshrined in Article 21 of our Constitution. Therefore, fair trial is the heart of criminal jurisprudence and, in a way, an important facet of a democratic polity and is governed by rule of law. Denial of fair trial is crucifixion of human rights."
7. In the case of Natasha Singh Vs. C.B.I. (State), (2013) 5 SCC 741, the Supreme Court dealt with the scope of discretionary power of Section 311, Cr.P.C. after referring the judgment of P. Sanjeeva Rao Vs. State of A.P., AIR 2012 SC 2242, which is as under:-
"Grant of fairest opportunity to the accused to prove his innocence was the object of every fair trial, observed this Court in Hoffman Andreas v. Inspector of Customs, Amritsar, (2000) 10 SCC 430. The following passage is in this regard apposite:
`In such circumstances, if the new Counsel thought to have the material witnesses further examined, the Court could adopt latitude and a liberal view in the interest of justice, particularly when the Court has unbridled powers in the matter as enshrined in Section 311 of the Code. After all the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible.' xx xx xx xx xx xx xx xx We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined in chief about an incident that is nearly seven years old..... we are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to cross-examine the witnesses, we would prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself."
8. It is settled position of law that fair trial is main object of criminal procedure and fair trial entails the interests of the accused as well as victim and of the society. Denial of fair trial is as much injustice to the accused as is to the victim and the society.
9. In view of the facts and circumstances of the case as prosecution witnesses Dr. P.K. Pandey, Kallu Khan (Eye witness), Constable Saligram Verma and Investigating Officer Girish Chandra Pandey are witnesses of prosecution, and if they are not examined which may adversely affect the fair trial and keeping in mind the position of law on this point, without going through the merit of the case, I am of the considered view that the present application under Section 482 Cr.P.C. deserves no merit and is liable to be dismissed and is, accordingly, dismissed.
Order Date :- 5.5.2025 Ishan