Allahabad High Court
Satish And 4 Others vs State Of U.P. And Another on 18 February, 2025
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:23250 Court No. - 71 Case :- APPLICATION U/S 482 No. - 39342 of 2024 Applicant :- Satish And 4 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Jitendra Pal Singh Jadaun Counsel for Opposite Party :- Devesh Kumar Shukla,Dharmesh Kumar Shukla,G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Vinay Saran, the learned Senior Counsel assisted by Mr. Jitendra Pal Singh Jadaun along with Mr. Pradeep Kumar Mishra, the learned counsel for applicants, the learned A.G.A. for State-opposite party-1 and Mr. Kandarp Srivastava, the learned counsel representing opposite party-2, who is a victim being son of deceased.
2. Perused the record.
3. This application under Section 482 Cr.P.C. has been filed by charge sheeted accused-Satish And 4 Others challenging the order dated 07.10.2024 passed by Additional District and Sessions Judge, Court No.-5, Aligarh in Sessions Trial No. 21 of 2008 (State V s. Tanuj @ Rajesh & Others), under Sections 147, 148, 307/149, 302/149, 120-B IPC and Section 7 Criminal Law Amendment Act, Police Station-Quarshi, District-Aligarh, whereby Court below has allowed the application (Paper No. 159-Kha) filed by the prosecution and consequently, fixed 28.10.2024 for recording the statements of accused-applicants in terms of Section 313 Cr.P.C.
4. Brief facts shorn of unnecessary details, on the basis of which, the controversy involved in present application can be effectiely decided, may be summerized in a narrow nutshell.
5. It transpires from record that in respect of an incident, which is alleged to have occurred on 04.01.2007, a prompt FIR dated 04.01.2007 was lodged by first informant Ram Singh and was registered as Case Crime No. 5 of 2007, under Sections 147, 148, 149, 307, 302, 120-B IPC and Section 7 Criminal Law Amendment Act, Police Station-Quarshi, District-Aligarh. In the aforesaid FIR, 9 persons namely (1) Tanuj @ Rajesh, (2) Satish, (3) Bijendra, (4) Omkar, (5) Nempal, (6) Subhash, (7) Preetam, (8) Mohkam and (9) Narendra Sharma have been nominated as named accused, whereas 2 to 3 unknown persons were also arraigned as accused.
6. After aforementioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chaper-XII Cr.P.C. On the basis of material collected by him, during course of investigation including the statements of witnesses examined under Section 161 Cr.P.C., he came to the conclusion that offence complained of is prima facie found to have occurred. Investigating Officer further came to the conclusion that the complicity of all the named accused is prima-facie established in the crime in question. He, accordingly, opined to submit the charge sheet. Ultimately, Investigating Officer submitted the charge sheet/police report dated 15.04.2007 in terms of Section 173(2) Cr.P.C., whereby all the named accused were charge sheeted under Sections 147, 148, 149, 307, 302, 120-B IPC and Section 7 Criminal Law Amendment Act.
7. Upon submission of aforementioned charge sheet/police report, cognizance was taken upon same by the Jurisdictional Magistrate in exercise of jurisdiction under Section 190(1)(b) Cr.P.C. However, as offence complained of is triable exclusively by the Court of Sessions, therefore, the Jurisdictional Magistrate, in line with Section 209 Cr.P.C., committed the case to the Court of Sessions. Resultantly, Sessions Trial No. 21 of 2008 (State V s. Tanuj @ Rajesh & Others), under Sections 147, 148, 307/149, 302/149, 120-B IPC and Section 7 Criminal Law Amendment Act, Police Station-Quarshi, District-Aligarh came to be registered in the Court of Additional Sessions Judge/F.T.C. Court No.-3, Aligarh.
8. Concerned Sessions Judge proceeded with the trial in accordance with the mandate of Section 228 Cr.P.C. He, accordingly, proceeded to frame charges against charge sheeted accused.
9. In this regard, the concerned Sessions Judge passed an order dated 27.03.2009, photo copy of which is on record at page 32 of the paper book. Since aforesaid order has much bearing on the issue involved in present application, therefore, for ready reference, the same is reproduced herein below:-
"??????: 27.03.2009 ????
?????????? ???? ???? ?????, ????, ?????????, ?????, ??????, ?????, ?????? ????, ????? ???? ??? ???????? ????? ?? ???? ??????? ???????? ?? ??? ??????? ??? ?????????? ?? ??????? ???????? ??? ??????? ????? ???? ?????? ???????? ??????? ?? ???? ?? ?????? ???? ????
?????????? ?? ??????? ????? ??? ???? ?? ?????? ??? ????? ????? ???????, ??? ?????, ???? ???? ? ???? ????????? ???????? ?? ?????? ???? ????
?? ???? ?? ???????? ???? ??? ?? ?? ????????????? ?????? ??????? ???? ??? ??????? ?? ???? ?? ?????????? ?? ??????? ???? 147, 148, 307/149, 302/149, 120?? ????????? ?? ????? ??????? ???? ????? ???? ???? ???????? ???? ??? ??? ???? ?????? ?? ???? ?????? ???? ????
??????? ?????????? ?? ??????? ???? ?????? ??? ???? ?????? ???? ???? ?????????? ?? ???? ???????? ???? ??? ?????? ?? ???? ????? ??????? ???? ?????? ??? ?????? ???????? ??????. ?? ??? ??? ???? ????"
10. Aforesaid framing of charge order was not signed by the concerned Sessions Judge. However, the reason for not signing the said order is not discernible from the order itself. On the same date, the Sessions Judge passed another order dated 27.03.2009. Photo copy of same is on record at page 38 of the paper book. Since the said order also has a material bearing on the controversy involved in present application, therefore, for ready reference, the same is also extracted herein under:-
"????
??, ????????? ?????, ??? ???? ????????? / ????? ????? ?????, ??????-3, ?????? ????????? ?? ???? ???? ?????, ????, ?????????, ?????, ??????, ?????, ?????? ????, ????? ???? ??? ???????? ????? ?? ????? ???? ?????? ???? ????
1-?? ?? ?????? 4.01.2007 ?? ??? ???? 10.15 ??? ???? ????? ????? ??? ???? ???? ???????? ???? ???????? ??? ???? ???? ???? ??????? ?? ??? ???? ?????? ????? ?? ???? ???? ???? ??????? ?? ?????? ???? ???? ????? ?? ?????? ???? ?????????, 1860 ?? ???? 147 ?? ???????? ?????? ????? ????? ????, ?? ?? ?? ???????? ?? ??????? ??? ???
2- ?? ?? ??????? ??????, ? ??? ? ????? ?? ???? ???? ???????? ?? ??? ???? ???? ?????? ???? ???? ?? ???? ???? ??????? ?? ??????? ???? ????, ???? ????????, ??????, ?????, ?????? ?????? ? ?????? ?? ???? ?? ???? ????? ?? ?????? ???? ????????? 1760 ?? ???? 148 ?? ???????? ?????? ????? ????? ???? ?? ?? ?? ???????? ?? ??????? ??? ???
3- ?? ?? ??????? ??????, ??? ? ????? ?? ???? ???? ???? ??????? ?? ??? ?? ??? ????? ?? ???????????? ??? ??? ?? ????? ?? ???? ?? ???? ??????? ?? ??? ???? ????, ???????, ????? ??? ??? ?????? ?? ???? ????? ??? ???? ???? ?? ?????? ?? ???? ?? ?? ?? ????? ?? ???? ?????? ?? ?????? ???? ????????? 307/149 ?? ???????? ?????? ????? ????? ????, ?? ?? ?? ???????? ?? ??????? ??? ???
4-?? ?? ??????? ??????, ??? ? ????? ?? ???? ???? ???? ??????? ?? ??? ????? ???? ??? ???? ?? ???? ???? ? ???? ????? ??? ?? ???? ?? ??? ?????? ?? ???? ???? ?? ??????? ???? ??? ?????? ?? ???? ?? ?????? ???? ????????? 1860 ?? ???? 302/149 ?? ???????? ??????? ????? ????? ????, ?? ?? ?? ???????? ?? ??????? ??? ???
5- ?? ?? ??????? ?????? ??? ? ????? ?? ???? ???? ???? ??????? ?? ??? ????? ???? ?? ??? ? ???? ?? ???? ???? ????? ??? ?? ???? ?? ???? ????? ?? ???? ???? ?? ?????? ????? ???? ?? ??? ??????? ???? ????? ?? ?????? ???? ????????? 1860 ?? ???? 120?? ?? ???????? ?????? ????? ????? ????, ?? ?? ?? ???????? ?? ??????? ??? ???
6- ?? ?? ??????? ?????? ??? ? ????? ?? ???? ???? ??????? ?? ??? ????? ??????? ?????????? ??? ??? ???? ??? ?????? ????? ??? ???? ?? ???? ??? ???? ???? ????? ?? ????? ?? ????? ?? ????? ???? ????? ?? ?????? ?? ????? ?? ???? 7 ??? ??? ????????? ???? ?? ??????? ?????? ????? ????? ????, ?? ?? ?? ???????? ?? ??????? ??? ???
6-??????? ?????? ??? ? ????? ?? ???? ???? ??????? ?? ??? ????? ??????? ?????????? ??? ??? ???? ??? ?????? ????? ??? ???? ?? ???? ??? ???? ???? ????? ?? ????? ?? ?????? ????? ??? ???? ?? ???? ??? ???? ???? ????? ?? ????? ??????? ????? ?? ????? ???? ????? ?? ?????? ?? ????? ?? ???? 7 ?????? ???? ???-????????? ???? ?? ???????? ?????? ????? ????? ???? ??? ?? ?? ?? ???????? ?? ??????? ??? ???
????????? ?? ???? ??????? ???? ??? ?? ???? ????? ?? ??? ???? ?????? ?? ???????? ?????? ???? ?????"
11. The endorsement on the said order was made only by 5 of the charge sheeted accused namely (1) Satish, (2) Omkar, (3) Preetam Singh, (4) Narendra Sharma and (5) Tanuj @ Rajesh. The photo copy of the aforesaid order, which has been appended along with this application and is at page 38 of the paper book, contains a noting that proceedings against accused-Nempal stood abetted on account of his death. However, the date of death of aforesaid accused is not very clear as per the noting occurring at page 38 of the paper book.
12. Thereafter, the matter was taken up by the concerned Sessions Judge on 27.03.2009, and he passed the following order:-
"27/03/09 Got the case called out. All accused persons except accused Bijendra Singh with their Learned Counsels are present. The charge has been typed but not signed due to the absence of accused Bijendra Singh. An application for exemption from personal appearance of accused Bijendra Singh has been moved. Heard. Several dates have been granted. No ground is made out to allow the application. Application for exemption from personal appearance of the accused Bijendra Singh is rejected. Put up for charge on 06-04-2009. NBW be issued against accused Bijendra Singh."
13. The concerned Sessions Judge by means of aforesaid order concluded that since accused Birendra Singh was not present, therefore, framing of charge order was not signed by him. This is further corroborated from the fact that framing of charge order dated 27.03.2009, copy of which is on record and is at page 38 of the paper book, has not been signed by co-accused Birendra Singh. Therefore, prima-facie it can be concluded that framing of charge order dated 27.03.2009 was passed by Court below in absence of charge sheeted accused Birendra Singh.
14. However, irrespective of aforesaid anomaly, the trial continued unabated. The prosecution witnesses appeared before Court below and they were also cross examined on behalf of accused.
15. Subsequently, in the year, 2024, the Trial Judge discovered that since no valid framing of charge order in exercise of jurisdiction under Section 228 Cr.P.C., has been passed against charge sheeted accused, therefore, fresh charges are required to be framed against accused. Accordingly, concerned Sessions Judge passed another framing of charge order dated 11.09.2024, which is on record at page 82 of the paper book. For ready reference, the same is reproduced herein below:-
"????
??, ??? ?????, ??? ???? ??? ???? ????????? ????? ??????-05. ?????? ?? ?????????? ???? ???? ?????, ????, ?????????, ?????, ?????, ????? ???? ??? ???????? ????? ?? ??????? ?????????? ???? ????? ???-
1. ?? ?? ?????? 04.01.2007 ?? ??? 10:15 ??? ?? ????? ????? ??? ???? ???? ???????? ???? ???????? ???? ?????? ??? ???? ???? ???? ??????? ?? ??? ???? ?????? ????? ?? ???? ???? ???? ??????? ?? ?????? ???? ???? ????? ?? ?????? ???? ?????? ???? ?????? ?? ???? 147 ?? ???? ??????? ????? ????? ???? ??, ?? ?? ???????? ?? ?????????? ??? ???
2 ?? ?? ??????? ?????? ??? ? ????? ?? ???? ???? ???????? ?? ??? ???? ???? ?????? ???? ???? ?? ???? ???? ?????? ??????? ?? ?????? ???? ???, ???? ??????, ??????, ?????, ?????? ?????? ? ?????? ?? ???? ?? ???? ????? ?? ?????? ???? ?????? ???? ????? ?? ???? 148 ?? ???? ??????? ????? ????? ???? ?? ?? ?? ???????? ?? ?????????? ??? ???
3. ?? ?? ??????? ?????? ??? ? ????? ?? ???? ???? ???? ??????? ?? ???? ??????? ???? ?? ??? ??????? ??????? ?? ???????? ??? ??? ????? ?? ???????????? ??? ???, ?? ????? ?? ???? ?? ???? ??? ???? ?? ??? ???? ????, ???????, ???????? ??? ?????? ?? ???? ????, ??? ???? ???? ?? ?????? ?? ???? ?? ?? ????? ?? ???? ????? ?? ?????? ???? ?????? ???? ?????? ?? ???? 307/149 ?? ???? ??????? ????? ????? ???? ?? ?? ?? ???????? ?? ?????????? ??? ???
4. ?? ?? ??????? ?????? ??? ? ????? ?? ???? ???? ???? ??????? ?? ???? ??????? ???? ?? ??? ??????? ??????? ?? ???????? ??? ????? ???? ??? ???? ?? ???? ???? ? ???? ?????? ??? ?? ???? ?? ???, ?????? ?? ???? ???? ?? ??????? ????? ??? ?????? ?? ???? ?? ?????? ???? ?????? ???? ?????? ?? ???? 302/149 ?? ???? ??????? ????? ????? ???? ?? ?? ?? ???????? ?? ?????????? ??? ???
5. ?? ?? ??????? ?????? ??? ? ????? ?? ???? ???? ???? ??????? ?? ??? ????? ???? ?? ??? ? ???? ?? ???? ???? ?????? ??? ?? ???? ??? ???? ???? ?? ????? ????? ???? ?? ??? ??????? ???????? ????? ?? ?????? ???? ?????? ???? ?????? ?? ???? 120?? ?? ???? ??????? ????? ????? ???? ?? ?? ?? ???????? ?? ?????????? ??? ???
6. ?? ?? ??????? ?????? ??? ? ????? ?? ???? ???? ???? ??????? ?? ??? ????? ??????? ?????????? ??? ??? ???? ??? ?????? ????? ??? ???? ?? ???? ??? ???? ???? ????? ?? ????? ?? ???? ????? ?? ????? ???? ????? ?? ?????? ???? ???? 7 ???????? ??? ??????????? ???? ?? ???????? ??????? ????? ????? ???? ?? ?? ?? ???????? ?? ?????????? ??? ???
??? ?????? ??? ??????? ???? ??? ?? ???? ???? ?? ??? ???? ?????? ?? ?????? ?????? ???? ????"
16. Even though, fresh charges were framed against charge sheeted accused, vide framing of charge order dated 11.09.2024 but this order also remained unchallenged at the behest of prosecution.
17. However, the prosecution i.e. opposite party-2 Sandeep Yadav (victim), in order to overcome the effect of subsequent framing of charge order dated 11.09.2024, filed an application dated 17.09.2024 (Paper No. 159-Kha), with the prayer that since the depositions of witnesses have already been recorded, therefore, the trial be decided on the basis of evidence previously recorded. The prayer prayed for by means of aforementioned application is extracted herein under, inasmuch as, it is this prayer, which has led to be passing of order impugned in present application:-
"??? ??????? ?? ?? ??????? ????????? ?? ?? ???????? ??? ???? ?????? ?? ??????? ??? ???????????? ? ?????????? ?? ???????? ?????? ?? ???????? ???? ???? ????? ??? ???????? ??????? ?? ???? ????? ???? ???? ?????? ?? ???????? ???? ?? ???? ?? ?????"
18. Aforementioned application was objected by the charge sheeted accused, who filed their objections (Paper No. 160-Kha and 161-Kha respectively). However, Court below, upon evaluation of material on record, came to the conclusion that the prayer prayed for by means of aforementioned application dated 17.09.2024 filed by the prosecution is liable to be accepted. Accordingly, even though fresh charges were framed against charge sheeted accused, vide framing of charge order dated 11.09.2024, the concerned Sessions Judge fixed 28.10.2024 for recording the statements of charge sheeted accused in terms of Section 313 Cr.P.C., vide order dated 07.10.2024.
19. Feeling aggrieved by the above order dated 07.10.2024, applicants, who are charge sheeted accused and facing trial before Court below, have now approached this Court by means of present application under Section 482 Cr.P.C.
20. Mr. Vinay Saran, the learned Senior counsel for applicants submits that the procedure adopted by Court below by means of impugned order dated 07.10.2024 is not only illegal but also very strange and unknown to common criminal law. In elaboration of his aforesaid submission, the learned Senior counsel for applicant contends that as per the scheme of the Code i.e. Cr.P.C. first charges are required to be framed in presence of accused. Thereafter the accused is to be offered an opportunity to plead guilty or not guilty. Only if the accused pleads not guilty and demands trial by denying the charges so framed then the Court concerned shall proceed to conduct the trial of accused. To lend legal support to his submission, he has referred to Section 228 Cr.P.C. with much emphasis upon Section 228(2) Cr.P.C.
21. Admittedly, the Court had earlier passed an order dated 27.03.2009 referred to above, wherein the Court itself opined that since one of the charge sheeted accused was not present, therefore, the framing of charge order was not signed. This order was never challenged by the prosecution before this Court by filing an application under Section 482 Cr.P.C. Similarly, the subsequent framing of charge order dated 11.09.2024 passed by Court below has also not been challenged by the prosecution before this Court by filing an application under Section 482 Cr.P.C. Once the prosecution has chosen not to challenge aforementioned orders dated 27.03.2009 and 11.09.2024 then the prosecution cannot plead that the trial be decided as per the material on record and which came into existence, prior to the order dated 11.09.2024 passed by Court below. It is well settled that the evidence of the parties is to be recorded by the Trial Judge in a case triable by Court of Sessions only after the charges have been framed against accused. It is an undisputed fact that in the present case, fresh charges have been framed against charge sheeted accused, vide framing of charge order dated 11.09.2024. The earlier framing of charge orders dated 27.03.2009, which are on record at pages 32 and 38 of the paper book are irrelevant in view of the observations made by the concerned Sessions Judge himself in the third order dated 27.03.2009 passed by Court below. The aforesaid anomaly cannot be said to be an irregularity but an illegality. As such, the same cannot be ignored with the aid of Section 464 Cr.P.C. either. Once charges have been framed against accused by a valid framing of charge order dated 11.09.2024, a denovo trial was required to be conducted. As such, prima-faice, the present application is liable to be allowed.
22. Per contra, the learned A.G.A. representing State-opposite party-1 initially opposed the present application. However, in all fairness, the learned A.G.A. submits that the first framing of charge order dated 27.303.2009 was not signed by the Sessions Judge. He then invited the attention of Court to the document occurring at page 38 of the paper book i.e. second framing of charge order dated 27.03.2009. With reference to the same, he submits that though this order is signed by the concerned Sessions Judge as is evident from the photo copy of the same, however, it is evident from the order itself that it has been signed by only 5 of the charge sheeted accused, on the left hand side of above order. whereas the said order was passed against all the charge sheeted accused, who are nine in number. However, the date mentioned below the signatures made by some of the accused, who had singed the order dated 27.03.2009 is 18.09.2018 i.e. after 9 years from the date of passing of the order i.e. 27.03.2009. Learned A.G.A., therefore, contends that in view of the aforesaid incriminating circumstance, which leads to an inference that the trial is not a free and fair trial, therefore, he does not wish to oppose this application any further.
23. On the other hand, Mr. Kandarp Srivastava, the learned counsel representing opposite party-2, who is the son of deceased and alleges himself to be a victim, has vehemently opposed the present application. According to the learned counsel representing opposite party-2, as per the material on record, the charges were framed against accused-applicants and others as is evident from the framing of charge order dated 27.03.2009 i.e. IInd framing of charge order, photo copy of which is on record and is at page 38 of the paper book. The parties went to trial with open eyes, on the basis of aforesaid framing of charge order, therefore, what has emerged on record, is a mere irregularity and not an illegality, so as to vitiate the entire proceedings, which has concluded up to this stage. Much emphasis was laid upon the provisions contained in Section 464 Cr.P.C. in support of above submission. According to the learned counsel representing opposite party-2, irrespective of the orders dated 27.03.2009 and 11.09.2024, since there was merely an irregularity in the conduct of trial and not an illegality in conducting the trial, therefore, no denovo trial is required. Admittedly, the parties went to trial with open eyes. The evidence of the prosecution witnesses was angulared as per the framing of charge order dated 27.03.2009 and the prosecution witnesses were also cross examined on behalf of accused in the light of above. No objection was ever raised on behalf of the accused regarding the same. As such, the accused-applicants are now estopped from contending that since charges have been framed on 11.09.2024 against them, therefore, a denovo trial is required. Moreover, the prejudice that shall be caused to the accused, in case, the trial is concluded on the basis of evidence previously recorded, has not been addressed to, by the learned counsel for applicants. In the absence of any prejudice having been caused to the applicants, no interference is warranted by this Court. On the above conspectus, it is thus urged by Mr. Kandarp Srivastava, the learned counsel representing opposite party-2 that since no error of law is perceptible from the record qua the proceedings in question, which may vitiate the trial, therefore, the present application is liable to be dismissed by this Court.
24. Having heard Mr. Vinay Sharan, the learned Senior Counsel assisted by Mr. Jitendra Pal Singh Jadaun and Mr. Pradeep Kumar Mishra, the learned counsel for applicants, the learned A.G.A. for State-opposite party-1, Mr. Kandarp Srivastava, the learned counsel representing opposite party-2 and upon perusal of record, this Court finds that it is an undisputed fact that Court below passed the framing of charge order dated 27.03.2009, photo copy of which is on record at page 32 of the paper book. Perusal of the same goes to show that this order was not signed by the Presiding Officer. On the same day, the Presiding Officer passed another order dated 27.03.2009, which is also a framing of charge order. This order is signed by the Presiding Officer. However, the same does not bear the signatures of all the charge sheeted accused but only 5 of the charge sheeted accused. Two facts, which are relevant for the controversy in hand, have originated on record with reference to the said order i.e. firstly, the proceedings against one of the charge sheeted accused Nempal were abated by Court below. However, the date of death of accused Nempal is not discernible from the record. Secondly, the said order contains the signatures of only 5 of the charge sheeted accused namely (1) Satish, (2) Omkar, (3) Preetam Singh, (4) Narendra Sharma and (5) Tanuj @ Rajesh, whereas the charges were framed against all the 9 charge sheeted accused. As such, the same was passed in absence of other accused. The date mentioned on the left hand side of this order below the signatures of accused, who had signed the said order is 18.09.2018 i.e. after 9 years from the date of aforementioned framing of charge order. As such, the said order is not worthy of being credited as legal and justified.
25. At this stage, it would be relevant to reproduce Section 228 Cr.P.C., which empowers the Court of Sessions to frame charges against accused and thereafter, proceed against the accused as per the mandate contemplated in aforesaid Section;-
"Section 228 Cr.P.C.- Framing of Charge-
(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b) of Sub-Section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."
26. Perusal of aforesaid provisions will go to show that it is both procedural and substantive. It is procedural to the extent that the Court of Sessions dealing with the trial has to frame charge/charges against charge sheeted accused. This part of the Section is purely procedural as without framing a charge, the Court cannot proceed to declare the guilt/innocence of an accused.
26A. The second part of the Section is substantive as after the charges have been framed, the accused can either plead guilty or not guilty. If the accused pleads guilty then Court can convict him on the basis of confession. Only if the accused does pleads not guilty, the Court can proceed with the trial and summon the witnesses.
27. In the present case, the stage of pleading guilty or not guilty by all the accused never came into existence. Therefore, what follows from above is that Court below proceeded with the trial of all the charge sheeted accused without complying with the mandatory provisions of Section 228(2) Cr.P.C. There is nothing on record to show that the trial of such accused, who were not present on 27.03.2009 before Court below, was segregated in exercise of jurisdiction under Section 317(2) Cr.P.C.
28. The veracity of the above order has been doubted by the Presiding Officer himself when he passed the order dated 27.03.2009 that though the framing of charge order was passed by Court but the same was not signed. It is well settled that the recital contained in the order of a Court is to be treated as conclusive and in case, any doubt is raised regarding the contents of the same, remedy lies to the person challenging the same to approach that very Court, which has passed the order. No such exercise was undertaken by the prosecution seeking correction in the order dated 27.03.2009. Subsequently, the Trial Judge, who was conducting aforementioned Sessions Trial discovered that charges have not been framed against charge sheeted accused by the Court as per the mandate of Section 228 Cr.P.C., therefore, by a subsequent order dated 11.09.2024, he framed fresh charges against charge sheeted accused. This order dated 11.09.2024 has also not been challenged by the prosecution. Therefore, what follows from above is that once fresh charges have been framed then denovo trial of the charge sheeted accused was required to be conducted by Court below. The said conclusion emerges out of the scheme contemplated in the Code i.e. Cr.P.C. As per the mandate of law, first charges are required to be framed, then the same have to be read out to the accused, thereafter, only in case, the accused pleads not guilty and demands trial that the Sessions Judge shall proceed with the trial and summon the prosecution witnesses. The order dated 11.09.2024 passed by Court below, whereby fresh charges have been framed against accused is in consonance with above. However, the subsequent concerned Sessions Judge in ignorance of the above order dated 11.09.2024 passed the order impugned dated 07.10.2024. Primarily the concerned Sessions Judge has rendered the order dated 11.09.2024 to be totally futile as by means of the said order, the Sessions Judge has held that there is no illegality in the manner, the trial has proceeded.
29. The alleged irregularity, if any, in the trial shall not stand protected by the provisions contained in Section 464 Cr.P.C. The concerned Sessions Judge, in ignorance of aforesaid legal principle allowed the application (Paper No. 159-Kha) filed by the prosecution that the trial be concluded as per the statements of witnesses previously recorded. It is well settled that the consequences of a process cannot precede the process itself. Once the framing of charge order was passed by Court below on 11.09.2024 itself then the Court was required to comply with the mandate of Section 228(2) Cr.P.C. only in case, accused pleaded not guilty and denying the charges so framed against him followed by demand of trial that Court can proceed to record the statements of the prosecution witnesses afresh and thereafter, decide the guilt/innocence of accused-applicants, if any. The said procedure having not been followed and the contrary procedure having been allowed to be adopted by Court below by means of the order impugned dated 07.10.2024, therefore, the order impugned in present application is not only illegal but also in excess of jurisdiction.
30. Though Sections 464 and 465 Cr.P.C. restrict the jurisdiction of Court to reverse the judgment and order of Court but the same is qualified by the restriction imposed in aforesaid Sections itself. For ready reference, Sections 464 and 465 Cr.P.C. are reproduced herein below:-
"464. Effect of omission to frame, or absence of, or error in, charge.
(1)No finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
(2)If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may -
(a)in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge;
(b)in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit :
Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.
Section 465 Cr.P.C. - Finding or sentence when reversible by reason of error, omission or irregularity-
(1). Subject to the provisions hereinbefore contained, on finding sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.
(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."
However, since there is nothing on record to show that the stage of Section 228(2) Cr.P.C. was complied with in respect of all the accused, the resultant trial is a nullity. Reference at this stage be made to the judgment of Privy Council in Nazir Ahmad Vs. King Emperor, AIR 1936 Privy Council 253, wherein it has been observed that where the law requires a thing to be done in a particular manner, it can be done in that manner alone or not at all.
31. In view of the discussion made above, the present application succeeds and is liable to be allowed.
32. It is, accordingly, allowed.
33. The order impugned dated 07.10.2024 passed by Additional District and Sessions Judge, Court No.-5, Aligarh in Sessions Trial No. 21 of 2008 (State V s. Tanuj @ Rajesh & Others), under Sections 147, 148, 307/149, 302/149, 120-B IPC and Section 7 Criminal Law Amendment Act, Police Station-Quarshi, District-Aligarh is, hereby, quashed.
34. The concerned Sessions Judge shall now proceed with the trial as per the mandate of Sections 241/242 Cr.P.C.
35. In the facts and circumstances of the case, parties shall bear their own costs.
36. Considering the facts and circumstances of the case that the incident giving rise to present criminal prosecution occurred in the year, 2007 and the trial of accused has to be conducted afresh, therefore, it is directed that Court below shall proceed with the trial of accused on day to day basis.
Order Date :- 18.2.2025 Vinay