Allahabad High Court
Maroof Rana vs State Of U.P. And Others on 12 July, 2013
Author: Ravindra Singh
Bench: Ravindra Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
Criminal Misc.Application No. 19361 of 2012
Maroof Rana Vs. State of Uttar Pradesh and others
*****
Hon'ble Ravindra Singh, J.
Heard Sri Kameshwar Singh, learned counsel for the applicant, learned A.G.A.for the State of U.P. and Sri Satya Prakash Srivastava, holding the brief of Sri Kamal Kishor Mishra for O.P.Nos. 2 and 3.
This application has been moved by the applicant Maroof Rana invoking the section 482 Cr.P.C.with a prayer to quash the order dated 14.5.2012 passed by learned Additional Sessions Judge/Special Judge ( S.C./S.T. Act), Meerut in S.T.No. 1206 of 2007 whereby the application moved by the applicant for not producing P.W.2 Maroof Rana and P.W.3 Mohd. Riyazul because there was no need to recall them in respect of the added charge under section 147 I.P.C., has been rejected.
The facts, in brief , of this case are that the FIR in Case Crime No. 2273 of 2006 under sections 148, 149, 302, 323, 307, 427 I.P.C.has been lodged by the applicant at Police Station Kotwali Nagar, District Muzaffar Nagar in respect of the incident allegedly occurred on 28.10.2006 from 3.30 P.M. to 3.40 P.M. in which deceased Muzaffar Rana has been killed, the applicant and Riyazul Hasan ( Mohd. Riyazul) sustained injuries, after completing the investigation the charge sheet has been submitted against Kadir Rana, O.P.No.2, Noor Salim O.P.No. 3, Mohd. Gauri and Pappu. In the said incident two unknown miscreants also participated in commission of the alleged offence. The learned Magistrate concerned took the cognizance on the charge sheet submitted by the I.O., thereafter the case was committed to the court of session. The trial court framed the charge under sections 148, 302/149, 307/149, 323/149, 427/149 I.P.C.against the accused Kadir Rana O.P.No.2 and Noor Salim O.P.No.3 and the charge under section 147, 302/149, 323/149 and 427/149 has been framed against the accused Mohd. Gauri and pappu, thereafter P.W.1 Constable Subodh Kumar, P.W.2 Maroof Rana ( injured/complainant), P.W.3 Mohd. Riazul ( injured), P.W.4 Dr.Mukesh, P.W.5 Constable Baljore, P.W.6 Dr. Ajay Kumar, P.W.7 Dr. Karan Singh have been examined, the examination in chief of P.W.8 SSI Deepak Malik was recorded but his cross examination was deferred, thereafter an application dated 8.8.2011 has been moved by Sri Mamnoon, the brother of the first informant Maroof Rana, P.W.2 with a prayer that charge under section 147 I.P.C.may also be added against O.P.No.2 Kadir Rana, O.P.No.3 Noor Salim, it was not objected by the counsel for the defence with a condition the right to cross examine to the witnesses already examined, be provided. The trial court allowed the above application No. 419 Kha by adding additional charge of section 147 I.P.C.against O.P.No. 2 and O.P.No.3 also, immediately thereafter an application for re-cross examination of P.W.2 Maroof and P.W.3 Riyazul was moved on behalf of O.P.Nos. 2 and 3, the same was allowed and P.W.2 and P.W.3 were recalled for re-cross examination for added charge under section 147 I.P.C. The applicant move an application dated 15.2.21012 in the court of leraned Additional Sessions Judge/Special Judge (S.C./S.T.Act) Meerut with a prayer that P.W.2 Maroof Rana and P.W.3 Mohd. Riazul may be discharged from giving their evidence as the complainant does not want to furnish any additional evidence in support of section 147 I.P.C.as it is already covered under section 148 I.P.C., no extra evidence is needed for it in which it has been further prayed that P.W.8 SSI Deepak Malik may kindly be called for his remaining cross examination so that the case may be concluded expeditiously. The above mentioned application dated 15.2.2012 has been moved on the following grounds :
1.That this is a hight profile murder case of district Muzaffarnagar and was transferred to Meerut by the Hon'ble High Court after the recording of statement of PW-1 Const.Subodh Kumar who had turned hostile despite being a public servant under the political pressure of accused persons.
2.That charge under sections 148, 302/149, 307/149, 323/149 & 427/149 I.P.C.were framed against all the accused persons 1.9.2007. That the Court earlier had framed charge u/s 147 I.P.C.on 12.6.2007 against accused persons Mohammad Gauri and Pappoo @ Gulfam.
3.That during trial the statements of prosecution witnesses namely PW1 Const.Subodh Kumar, P.W.2 Maroof Rana ( injured/Complainant), PW 3 Mohd. Riajul, P.W.4 Dr. Mukesh, PW 5 c/c Baljore, PW-6 Dr. Ajay Kumar, PW 7 Dr. Karan Singh have already been recorded. The cross-examination of PW 8 SSI Deepak Mali ( IO-1) is pending.
4.That the accused No.1 Qadir Rana is Member of Parliament belonging to ruling state government party BSP. The accused Qadir Rana has relentlessly and continously applied pressure on the Injured/Complainant PW 2 Maroof Rana and PW 3 Mohd. Riajul enter into compromise with him.
5.That the accused No.1 Qadir Rana had got a case framed against the complainant Maroof Rana and Mohd. Riazul at P.S.Korthore (Meerut) at case crime No. 192/11 u/s 498-A, 452, 504, 307, 506 I.P.C.& ¾ D.P.Act in connivance with his relative Munquad Ali ( another MP, Rajya Sabha) who hails from Kithore to coerce them into compromise.
6.That as the complainant PW-2 Maroof Rana was in jail in case crime No. 192/11, P.S.Kothore, the accused persons forced the family members to enter into a compromise in this Sessions Trial, otherwise he would be kept languishing in jail.
7.This forced the brother of complainant Mamnoon s/o Mohd. Ali to move an applicaton for getting a charge under section 147 I.P.C.added against accused persons Qadir Rana and Noor Salim respectively. This was done with an unterior motive to get the prosecution witnesses of fact namely PW-2 & PW 3 re-examined and get them to resile from their earlier statements.
8.The accused persons Qadir Rana and Noor Salim were additionally charged under section 147 I.P.C. on 8.8.2011.
9.That in the aforesaid trial the accused persons Qadir Rana was carrying a Pistol and accused Noor Salim was carrying a country made pistol at the time of offence. The accused persons Mohammad Gauri and Pappoo @ Gulfam were carrying Lathis.
10.That the said Mamnoon S/o Mohd. Ali had no locus to move an application to add or alter charge what so ever. This application was also drafted by the accused with legal help. An affidavit of Mamnoon is annexed herewith this application as annexure-1
11. That there was no need to get the charge u/s 147 I.P.C.added as the ingredients of Section 147 I.P.C.are already covered under section 148 I.P.C. The sections are reproduced below:
147. Punishment for rioting- Whoever is guilty of rioting shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
148. Rioting, armed with deadly weapon- Whoever is guilty or rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
12.That the motive behind recalling the witnesses namely PW-2 Maroof Rana and injured PW 3 Mohd. Riajul is to force them to go hostile. Interestingly, it is also pertinent to note that another already hostile withness of fact PW-1 Const. Subodh Kumar has not been recalled.
13.That under the aforesaid circumstances the above witnesses i.e.PW 2 Maroof Rana and injured PW-3 Mohd. Riajul may be discharged from giving their evidence as the complainant does not want to furnish any additional evidence in support of section 147 I.P.C.as it is already covered under section 148 I.P.C.and no extra evidence is needed for it.
14.That the witness PW-8 SSI Deepak Malik may kindly be called for his remaining cross-examination.
In support of the application dated 15.2.2012, the affidavits of Maroof Rana and Mamnoon s/o Mohd. Ali have been filed. The application dated 15.2.2012 filed by the applicant has been rejected by learned Additional Sessions Judge/ Special Judge ( S.C./S.T.Act) Meerut on 14.5.2012, being aggrieved from the order dated 14.5.2012, the present application under section 482 Cr.P.C.has been filed by the applicant.
It is contended by learned counsel for the applicant that O.P.No. 2 Kadir Rana is a Member of Parliament of the then Ruling Party, he wonover the P.W.1 Constable Subodh Kumar who was eye witness of the alleged incident, he did not support the prosecution story,thereforem, he was declared hostile by the prosecution. The accused persons including O.P.Nos. 2 and 3 are powerful and very influential persons, under the influence in pressure of O.P.No.2 Kadir Rana P.W.1 became hostile. The trial of the accued persons was pending in the court at Muzaffar Nagar, the applicant moved a transfer application before Hon'ble High Court as Criminal Misc. Transfer Application No. 648 of 2007, the same was allowed and the session trial of the accused persons was transferred from Muzaffar Nagar to Meerut on 26.9.2007. In the present case, P.W.1 to P.W.7 have been examined, their cross examination has also been completed, the examination in chief of P.W.8 has been recorded but his cross examination was deferred. The O.P.No.2 Mr.Kadir Rana, Member of Parliament belonging to the then Ruling party B.S.P.in the State of U.P.was applying pressure relentlessly and continuously on complainant P.W.2 Maroof Rana and P.W.3 Mohd. Riazul to enter into a crompromise with him, in the process O.P.No.2 had got a case registered against P.W.2 Maroof Rana and P.W.3 Mohd. Riyazul at police Station Kithore , district Meerut in case crime No. 192 of 2011 under sections 498A, 452, 504, 307, 506 I.P.C.and ¾ Dowry Prohibion Act in connivance with his relative Munquad Ali ( another M.P.of Rajya Sabha who hails from Kithore) in which P.W.2 Maroof Rana was sent to jail, during the period of his detention in jail, the accused persons forced the family members of P.W.2 to enter into a compromise in the present session trial, otherwise P.W.2 Maroof Rana would be kept languishing in jail, therefore, brother of the applicant, namely, Mamnoon was forced to move an application for getting a charge under section 147 I.P.C.added against O.P.No.2 and O.P.No.3. It was done with ulterior motive to get the prosecution witness of fact namely, P.W.2 and P.W.3 are examined and get them to resile from their earlier statements.
According to the prosecution version itself the O.P.No.2 Sri Kadir Rana was carrying a pistol and O.P.No. 3 Sri Noor Salim was carrying a country made pistol at the time of alleged offence. The accused Mohd. Gauri, Pappu alias Gulfam were carrying lathis. O.P.Nos. 2 and 3 were having the deadly weapons, therefore, the charge under section 148 I.P.C.was framed against them and accused persons Mohd. Gauri & Pappu alias Gulfam were armed with lathis, therefore, the charge under section 147 I.P.C.was framed against them. The charge under section 148 I.P.C.has already been framed against O.P.Nos. 2 and 3, therefore, there was no need to frame a separatre charge under section 147 I.P.C.
The person namely Mamnoon s/o Mohd. Ali is not the first informant of this case, even he is not the prosecution witness. He moved the application dated 8.8.2011 for framing the charge under section 147 I.P.C.against O.P.Nos. 2 and 3, Sri Mamnoon s/o Mohd. Ali was having no locus to move application for adding the charge under section 147 I.P.C., in fact, the application was drafted by accused with a legal help. The application for adding charge under section 147 I.P.C.was not moved by prosecuting agency. The trial court committed a manifest error by taking cognizance of the application dated 8.8.2011 by passing the order dated 8.8.2011 by which the application moved by Mamnoon has been allowed. The order dated 8.8.2011 passed by learned Additional Sessions Judge/Special Judge (S.C./S.T.Act) Meerut is illegal, it has not been passed after perusing the evidence recorded by the trial court. It has been passed in a routine manner on the basis of the application moved by Mamnoon whereas in the application dated 8.8.2011 even the material substance of the evidence recorded by the trial court constituting the offence under section 147 I.P.C., was not containing. It is also surprising that the application dated 8.8.2011 has been allowed only because it was not objected from the defence side subject to condition right to re-cross examination of the witnesses, be provided. It shows that trial court has passed the order dated 8.8.2011 without going through the evidene recorded by the trial court and without applying his judicial mind, therefore, this order dated 8.8.2011 may also be set aside.
It is further submitted by counsel for the applicant that in the present case recalling of the P.W.2 and 3 is not necessarily required, the charge against them under section 148 I.P.C.has already been framed. It has come in evidence that O.P.No.2 was armed with pistol and O.P.No.3 was armed with country made pistol, they were armed with deadly weapons, in such circumstance, the charge against them under section 148 I.P.C.is framed. The other two co-accused were not armed with deadly weapons, therefore, the charge against them under section 147 I.P.C.was framed. The application dated 8.8.2011 has been filed under pressure of the accused persons with ulterior motive to resile from their earlier statements, in case they are re-examined. Even under section 217 Cr.P.C.,the witnesses may not be recalled, if the accused resile to recall or re-examine such witnesses for the purpose of vexation or delay or not defeating the ends of justice. In the present case, in case P.W.2 and P.W.3 are re-examined , it may defeat the ends of justice. The application dated 8.8.2011 was moved by Mamnoon, the brother of the complainant under pressure of O.P.No.2, therefore, he filed an affidavit mentioning therein that O.P.No.2 having the connivance with Munquad Ali, M.P.Rajya Sabha, a case crime No. 192 of 2011 under section 498-A, 307, 452, 504, 506 I.P.C.and ¾ Dowry Prohibition Act got registered at Police Station Kithaur, district Meerut in which P.W.2 Maroof Rana was sent to Jail, during the period of his detention Mamnoon was pressurising to move an application which was typed by O.P.No.2 himself along with affidavit dated 15.2.2012. The application dated 15.2.2012 was moved by the applicant mentioning therein all the circumstances in which the application was moved for discharging P.W.2 and P.W.3 from giving their evidence as the complainant did not want to furnish any additional evidence in support of section 147 I.P.C.as it was already covered under section 148 I.P.C.but the learned trial court without applying judicial mind rejected the application of the applicant by passing the order dated 14.5.2012. The order dated 14.5.2012 is illegal, the same may be set aside and P.W.2 and P.W.3 may not be permitted to re-cross examine. In case P.W.2 and P.W.3 are recalled and re-examined, it will defeat the ends of justice.
In reply of the above contention it is submitted by learned A.G.A.that trial court has not committed any error in passing the orders dated 8.8.2011 and 14.5.2012 because the section 147 I.P.C. which is substantive offence has been added against O.P.Nos. 2 and 3 they may be permitted to re-cross examine the P.W.2 and P.W.3 for the added seciton 147 I.P.C. It is submitted by Sri S.P.Srivastava, counsel for O.P.Nos. 2 and 3 that in the present case one Mamnoon who moved the application for adding the charge under section 147 I.P.C.is real brother of the complainant P.W.2 for altering /adding the charge the application may be moved from the side of the accused or the prosecution or by both.
Sri Mamnoon being, brother of the first informant, was having locus to move application dated 8.8.2011 for adding the charge, it was not objected by the defence subject to the condition right to re-cross examination the witnesses be provided, therefore, the trial court has not committed any error in allowing this application vide order dated 8.8.2011. Since the defence was not having any objection of adding charge under section 147 I.P.C. there was no need to peruse the evidence adduced by the prosecution for this purpose. The trial court has not committed any error in adding charge under section 147 I.P.C., once the charge was framed, the trial court has not committed any error in recalling the PW 2 and P.W.3 for re-cross examination for this purpose. The trial court has passed the order recalling P.W.2 and P.W.3 in exercise of power conferred under section 217 Cr.P.C. The charge under section 147 I.P.C.has been added in exercise of power conferred under section 216 Cr.P.C. The trial court has not committed any error in rejecting the application moved by the applicant for discharging P.W.2 and P.W.3 from giving their evidence because it was necessarily required under section 217 Cr.P.C.
It is further contended that O.P.No.2 has not exterted any pressure upon any witness including the applicant and his brother Mamoon and O.P.Nos. 2 and 3 were not having concern with the case registered against the applicant and P.W.3 Riyazul in Case Crime No. 292 of 2011 under sections 498-A, 452, 504, 506 I.P.C.and 3 / 4 Dowry Prohibition Act, police station Kithore, district Meerut in case after adding charge the substantive offence punishable under section 147 I.P.C. in case P.W.2 and P.W.3 are not recalled and re- cross examined on this charge. the O.P.No. 2 and O.P.No.3 shall suffer irreparable loss. The O.P.No.2 and O.P.No.3 being accused are having the right to re-cross examine P.W.2 and P.W.3 on added charge under section 147 I.P.C. The trial court has not committed any error in passing the order dated 14.5.2012. The present application is devoid of the merits, the same may be dismissed.
From the perusal of the record and considering the submissions made by learned counsel for the applicant, learned A.G.A. and Sri Satya Prakash Srivastava, counsel for O.P.Nos. 2 and 3, it appears that in the present case following issues are involved:
(i)Whether an application for altering or adding any charge may be moved other than prosecutor or accused.
(ii)Whether an application for adding any charge is moved , the same may be allowed only on the basis of ' no objection' of the defence side subject to the condition the right to cross examine the witnesses already examined is provided.
(iii)Whether a charge under section 147 I.P.C.may be framed against an accused who has already charged under section 148 I.P.C.
(iv)Whether an application under section 216 Cr.P.C.has been filed only for the purpose of recalling the witnesses for further cross examination so that the witnesses may resile from their earlier statements.
For dealing with the above mentioned issues involved in the present case, the perusal of sections 216 and 217 Code of Criminal Procedure, 1973 are necessarily required, which reads as under :
216.Court may alter charge.- (1) Any Court may alter or add to any charge at any time before judgment is pronounced.
(2) Every such alteration or addition shall be read and explained to the accused.
(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.
(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.
(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.
217.Recall of witnesses when charge altered.- Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed -
(a) to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends of justice;
(b) also to call any further witness whom the Court may think to be material.
B.- Joinder of charges To deal with first issue involved in the present case, it appears that the Section 216 Cr.P.C.is silent about the procedure for altering or adding any charge, it is simply conferring the power to the court for altering or adding any charge at any time before judgment is pronounced, the power has been conferred to the court but the procedure is not specifically prescribed, it means that the trial court may alter or add any charge suo motu also or any charge may be altered or added on the application moved by the prosecutor or the accused. The instant case is of police case, the proceedings have been initiated on the basis of FIR lodged by the applicant, the applicant is complainant ( first informant of this case). The Public prosecutor is empowered to move the application for altering or adding any charge , the same status is available to the accused persons also. In case such application is moved by the complainant ( first informant) which is endorsed and forwarded by Public Prosecutor may also be considered for the purpose of altering or adding any charge . In case the first informant is not surviving or due to any proper reason the complainant is not able to move such application, such application may be moved by the aggrieved person, such application must be forwarded by the Public Prosecutor.
In the present case, the applicant is first informant, he is surviving , his evidence has been recorded before the trial court as P.W.2, he has been summoned by the trial court for re-cross examination on the point of added charge under section 147 I.P.C. He has not moved the applicaton for adding or altering the charge, such application has not been moved by Public Prosecutor also, such application dated 8.8.2011 has been moved by Sri Mamnoon who is brother of the applicant-complainant. Sri Mamnoon is not eye witness, even he has not been examined before the trial court, his name has not been mentioned as witness in the list of witnesses, in the calender submitted by the Public Prosecutor, in such a circumstance, he comes in the category of stranger, in a police case stranger may not be permitted to move the application for altering or adding any charge, therefore, Sri Mamnoon was having no locus to move such application dated 8.8.2011 under section 216 Cr.P.C.
The second issue involved in the present case is that application dated 8.8.2011 moved by Sri Mamnoon has been allowed by the trial court on 8.8.2011 only on the ground that 'it was not objected by the defence side subject to the condition right to re-cross examine the witnesses may be provided'. The application dated 8.8.2011 which has been marked as Application No. 419 Kha is not having material substance of the evidence adduced by the witnesses P.W.2 and P.W.3 disclosing the commission of the offence punishable under section 147 I.P.C.but trial court has framed additional charge under section 147 I.P.C. against O.P.Nos. 2 and 3 only on the basis of application No. 419 Kha which has not been objected by the defence side subject to the condition right to re cross examine the witnesses be provided. From the perusal of order dated 8.8.2011, it appears that trial court has not perused the evidence of witnesses including P.W.2 and P.W.3 and without perusing the same, the charge under section 147 I.P.C.has been framed. The trial court has not framed the additional charge as prescribed by Code of Criminal Procedure, even the contents of the charge have not been mentioned therein. In such circumstances, the additional charge under section 147 I.P.C.may not be framed against O.P.Nos. 2 and 3 only on the basis of the application dated 8.8.2011 ( having no substance of evidence) which was not objected by defence side with a condition , the trial court which was not objected was under obligation to peruse the statements of the witnesses for the purpose of framing of additional charge under section 147 I.P.C. In the present case the trial court has not perused the evidence of the witnesses for the purpose of framing the additional charge even the trial court has not mentioned 'the material substance of the evidence disclosing the commission of the offence punishable under section 147 I.P.C. It appears that in a routine manner, the trial court has passed the order dated 8.8.2011 by which the additional charge under section 147 I.P.C.has been framed. The order dated 8.8.2011 passed by learned Additional Sessions Judge/Special Judge(S.C./S.T.Act) Meerut framing the additional charge under section 147 I.P.C. Against the O.P.Nos. 2 and 3 is illegal and is liable to be set aside.
To deal with the third issue, from the perusal of record, it appears that the charge under section 148 I.P.C.has already been framed against O.P.Nos. 2 and 3 and the charge under section 147 I.P.C.has been framed against co-accused Mohd. Gauri and Pappu. The only difference between the charge under section 147 I.P.C.and 148 I.P.C.is that if whoever is guilty of rioting, shall be punished under section 147 I.P.C.and whoever is guilty of rioting, being armed with deadly weapon, or with any thing which, used as a weapon of offence, is likely to cause death, shall be punished under section 148 I.P.C. In the present case, O.P.Nos. 2 and 3 were having the fire arms, the additional evidence for framing the charge under section 148 I.P.C.is of establishing that accused was armed with deadly weapons, in the present case, the injured witnesses have stated that that O.P.Nos. 2 and 3 were having the fire arm at the time of commission of the alleged offence. The ingredients of section 147 I.P.C.are already covered by the definition of section 148 I.P.C. The sections 147 and 148 I.P.C.are reproduced below :-
147. Punishment for rioting.--Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
148. Rioting, armed with deadly weapon.--Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
For the purpose of establishing the additional charge under section 147 I.P.C., the additional evidence is not required, in such circumstances, recalling of P.W.2 and P.W.3 for the purpose of re-cross examination in exercise of powers conferred under section 217 Cr.P.C. is not necessarily required, in case the P.W.2 and P.W.3 are recalled and re-cross examined, it may be for the purpose of vexation or delay or for defeating the ends of justice. In such circumstance, the trial court has committed an error by passing the order dated 8.8.2011 by which P.W.2 and P.W.3 have been recalled for the purpose of re-cross examination.
So far as the fourth issue as mentioned above is concerned it appears that in the present case O.P. No. 2 is Member of Parliament, it has been alleged that he is a powerful and influential person. At the time of passing the impugned order, his political party Bahujan Samaj Party was in power in the State of U.P.due to which P.W. 1 constable Subodh Kumar who is eye witness of the alleged incident has not supported the prosecution story, he has been declared hostile. The allegation against the O.P.No.2 is that he was continuously pressurising the applicant and other witnesses for entering into a compromise, according to the allegation made the applicant who is P.W. 2 and P.W. 3 Mohd. Riyazul were made accused in case crime No. 192 of 2011 under sections 498-A, 452, 504, 307, 506 IPC and section 3/4 D.P.Act, P.S. Kithore, District Meerut. The O.P. No. 2 Sri Kadir Rana who got the case registered against them in connivance with his relative Munquad Ali (Member of Parliament, Rajya Sabha) who hails from Kithore, only to coerce them to enter into a compromise. Sri Mamnoon who moved the application dated 8.8.2011 also filed an affidavit dated 15.2.2012 mentioning therein that application was got typed by Sri Kadir Rana, O.P. No. 2 and he was forced to file in the court for adding the additional charge under section 147 IPC. By that time the applicant Maroof Rana was confined in District Jail, Meerut in Case Crime No. 192 of 2011, P.S. Kithore, District Meerut. The application dated 15.2.2012 moved by the applicant along with his affidavit and affidavit of Sri Manmoon mentioning therein all the facts and circumstances in which in a pre planned manner Sri Manmoon was forced to file the application dated 8.8.2011 showing P.W. 2 and P.W. 3 may be re-examined and get them to resile from their earlier statements. It shows that the application dated 8.8.2011 has not been filed bonafidely but it was filed with ulterior motive to resile P.W. 2 and P.W. 3 from their earlier statements. In such circumstances, the application for recalling the witnesses P.W. 2 and P.W. 3 for re-examination has been filed to defeat the ends of justice. The learned trial court has committed a manifest error in recalling the P.W. 2 and P.W. 3 for the purpose of re cross examination because such application may not be allowed in view of the provisions of section 217-a Cr.P.C. If any application has been filed with an ulterior motive for defeating the ends of justice for recalling or re-examining the witnesses under section 217 Cr.P.C. can not be allowed but the trial court has allowed such application vide order dated 8.8.2011. The learned trial court has committed a manifest error in recalling the P.W. 2 and P.W. 3 for the purpose their re-cross examination. Such order dated 8.8.2011 is illegal and is hereby set aside.
The application dated 15.2.2012 moved by the applicant mentioning therein all the circumstances in which P.W. 2 Maroof Rana and P.W. 3 Mohd. Riyazul may be discharged from giving their evidence as the complainant does not want to furnish any additional evidence in support of section 147 IPC as it is already covered with the evidence framing the charge under section 147 IPC and no extra evidence was needed for it.
The learned trial court without considering all the facts and circumstances of the case rejected the application dated 15.2.2012 on 14.5.2012. The impugned order dated 14.5.2012 is illegal, therefore, on the basis of the reasons as stated above, the order dated 8.8.2011 framing the additional charge under section 147 IPC against O.P. No. 2 and 3 and recalling the P.W. 2 Maroof Rana and P.W. 3 Mohd. Riazul for re cross examination are illegal and is hereby set aside and the impugned order dated 14.5.2012 is also illegal and is hereby set aside.
Considering the facts that it is case in which the incident has been occurred on 28.10.2006 and sessions trial is pending since 2007. Seven witnesses have already been examined and the examination chief of P.W. 8 SSI Deepak Malik has already been recorded and the proceedings of the sessions trial have been transferred from sessions court Muzaffar Nagar to sessions Court, Meerut.
Considering the gravity of the offence and other circumstances, it is directed that the proceedings of Sessions Trial No. 1206 of 2007 pending in the court of learned Addl. Sessions Judge/ Special Judge (SC/ST Act), Meerut shall be expedited without granting any unnecessary adjournment to either of the side.
The interim order dated 30.5.2012 staying the further proceedings of S.T. No. 1206 of 2007 pending in the court of learned Additional Sessions Judge/ Special Judge (SC/ST Act), Meerut is hereby vacated.
Accordingly this application is allowed.
Let a copy of this order be communicated to the trial court Addl. Sessions Judge/ Special Judge (SC/ST Act), Meerut through learned Sessions Judge, Meerut forthwith for the compliance of the above mentioned direction.
Dated : July, 12 2013.
Su/RPD