Allahabad High Court
Rajan Tiwari vs State Of U.P. Thru. Addl. Chief Secy. ... on 6 May, 2026
Author: Rajeev Singh
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW APPLICATION U/s 482 No. - 2485 of 2024 Rajan Tiwari ..Applicant(s) Versus State of U.P. Thru. Addl. Chief Secy. Home, Deptt. Govt. of U.P. Civil Sectt. Lko. and 2 others ..Opposite Party(s) Counsel for Applicant(s) : Salil Kumar Srivastava, Rahul Srivastava Counsel for Opposite Party(s) : G.A., Reserved on: 06.02.2026 Pronounced on: 06.05.2026 Court No. - 17 HON'BLE RAJEEV SINGH, J.
1. Heard Sri Salil Kumar Srivastava, learned Senior Advocate assisted by Sri Rahul Srivastava, learned counsel for the applicant and Sri S.P. Tiwari, learned A.G.A. for the State.
2. This application has been filed with the following prayer:-
"Wherefore, it is most respectfully prayed that this Hon'ble Court may graciously be pleased to pass an order thereby quashing the impugned order dated 30.01.2024 passed by Special Judge (MP/MLA) Court, Lucknow thereby rejecting the application dated 30.10.2022 moved by the petitioner for referring the matter to the District Judge for reconstruction of case diary and other documents, and also to quash the order dated 25.04.2013 whereby the application for discharge dated 24.04.2013 has been rejected and also to quash the charge dated 26.06.2013 whereby the charge against the petitioner has been framed in absence of case diary especially when the petitioner was not named in the FIR and alternatively to quash the entire criminal proceeding arising out of Case Crime No. 293/1997 of S.T. No. 135/2004 State Vs. Rajan Tiwari U/s 307/302/120-B IPC, P.S Kaisarbagh, pending in the court of Special Judge (MP/MLA) Court, Lucknow and/or any other appropriate order or direction which this Hon'ble court may deem just fit and proper under the circumstances of the case may also kindly be passed in order to meet the ends of justice."
3. Learned counsel for the applicant has submitted that the prosecution of the case in question was started on the basis of written complaint of one Devendra Shukla s/o late Pateshvar Prasad Shukla r/o Gorakhnath, District- Gorakhpur, with the averment that on 31.07.1997 at about 6:45 pm, he came to Lucknow from Gorakhpur alongwith Bhanu Prakash Mishra, Umashankar Singh, Vivek Shukla and stayed at Room No. 102, Dilip Hotel. On the next day, i.e., on 01.08.1997 at about 09:30 am, Ramesh Jaiswal, who also hailed from Gorakhpur, came to meet them, when they were waiting for the breakfast, all of a sudden, Shreeprakash Shukla r/o Gorakhpur alongwith other two companions entered into the room armed with AK-47, rifles and pistol and started firing with the intention to kill them. At that time, the complainant was at the door of bathroom, hence, he escaped from there, however, rest of the persons received grievous injuries. It is further alleged therein that the assailants were having enmity with Neelendra Pandey due to contract dispute. In pursuance of the said incident, F.I.R. No. 293 of 1997, dated 01.08.1997, u/s 307, 120-B I.P.C., Police Station- Kaiserbagh, District- Lucknow was lodged, in which, after investigation, charge-sheet was submitted by the Investigating Officer u/s 307, 302, 120-B I.P.C. against three persons, namely, Shreeprakash Shukla, Neelendra Pandey and Rajan Tiwari (applicant).
3.1. It has been submitted that at the time of filing of aforesaid charge-sheet, the applicant was confined in Central Jail, Beur, Patna, Bihar in relation to Case Crime No. 230 of 1993. After providing copies in accordance with provisions of Section 207 Cr.P.C., the case of Neelendra Pandey was separated and committed to the Court of Sessions vide order dated 18.05.1999. Thereafter, charge was framed by learned trial Court against Neelendra Pandey on 25.09.1999 and trial was proceeded against him and it was concluded by way of acquittal in S.T. No. 470 of 1999 (State Vs. Neelendra Pandey) arising out of Case Crime No. 293 of 1997 u/s 302, 307 r/w 120-B I.P.C. vide judgement and order dated 06.06.2000. The applicant was also acquitted in S.T. No. 976 of 1999 (State Vs. Rajan Tiwari and others) by Additional Sessions Judge-11th, Patna vide judgement and order dated 14.02.2008 and thereafter, the applicant was transferred to Lucknow for the trial of the case in question.
3.2. It has further been submitted that in relation to the trial of S.T. No. 470 of 1999, the entire police record was sent to learned Sessions Judge after committal of the case on 18.05.1999 and the police papers as well as other documents were never sent back by the trial Court to the Magistrate for compliance of Section 207 Cr.PC. Thereafter, the applicant appeared before the Magistrate and on 13.02.2004, order was passed by Chief Judicial Magistrate, Lucknow with the observation that request was made by the Investigating Officer that Shreeprakash Shukla, Neelendra Pandey and Rajan Tiwari be tried u/s 302, 307, 120-B I.P.C.
3.3. It has been submitted that death report of co-accused - Shreeprakash was not received, hence, his file was also separated. On 'B' warrant, the applicant was produced before learned trial Court from Central Jail, Beur, Patna Bihar and though the Magistrate observed in the order that necessary documents have already been served u/s 207 Cr.P.C., hence, case is being committed to the Court of Sessions, but the correct fact is that documents were never provided to the applicant. After aforesaid committal order, the case of the applicant was registered as S.T. No. 135 of 2004 and it was transferred to Additional Sessions Judge, Lucknow.
3.4. It has been contended by learned counsel for the applicant that discharge application of the applicant was decided on 25.04.2013 with the observation that considering the first information report, GD, postmortem report, site plan, charge-sheet and other documents, prima-facie, sufficient evidence for framing of charge is found. Thereafter, in the order dated 04.07.2013, it was observed that P.W.-1 - Devendra Kumar Shukla has already been examined and the date 11.07.2013 was fixed for producing other witnesses and Senior Superintendent of Police was also directed for placing the case-diary. In the order dated 11.07.2013, it was observed that case-diary was not forwarded by Circle Officer and the same is not traceable. Thereafter, letters were continuously written for searching the case diary, but the same was never placed, though report was sought from learned Sessions Judge, Lucknow and record was also summoned.
3.5. Submission of learned counsel for the applicant was that as per the record available before learned trial Court, the copies of documents were never provided at the time of committal, however, it was the duty of learned Chief Judicial Magistrate to ensure that copies should be handed over to the applicant, but without handing over copies of police papers, the trial was proceeded by learned trial Court.
3.6. Relying on the judgment of this Court in the case of Diwan Singh Vs. State reported in AIR 1966 All 19, learned counsel for the applicant has submitted that if two persons are prosecuted, though separately, under the same charge for offences having been committed in the same transaction and on the basis of the same evidence, and if one of them is acquitted for whatever may be the reason and the other is convicted, then it will create an anamalous position in law and is likely to shake the confidence of the people in the administration of justice.
3.7. Learned counsel for the applicant has further placed reliance on the judgement dated 29.03.2022 passed by Coordinate Bench of this Court in Application u/s 482 No. 1325 of 2021 (Ananat Mishra @ Amit Mishra @ Surya Prakash Mishra Vs. State of U.P. and another) and has submitted that if one accused is acquitted, no criminal proceeding can be sustained against co-accused on the same set of witnesses.
3.8. It has also been submitted that in the present case, admittedly the charge-sheet was submitted against three accused persons, namely, Neelendra Pandey (acquitted), Sriprakash Shukla (trial abated due to death) and Rajan Tiwari (applicant).
3.9. Relying on the judgement of Hon'ble Supreme Court in the case of Manoj Kumar Soni Vs. State of M.P. reported in (2024) 17 SCC 401, learned counsel for the applicant has lastly requested that the impugned proceedings may be quashed by setting aside the rejection order.
4. Learned A.G.A., while opposing the prayer of the applicant, has submitted that after collecting sufficient evidence against the applicant, the charge-sheet was submitted by the Investigating Officer.
4.1. Learned A.G.A. has further submitted that the applicant was produced before learned Chief Judicial Magistrate on 'B' warrant on 13.02.2004 and the case was committed to the Court of Sessions, but in the record of S.T. No. 470 of 1999, there is no order for sending the exhibits as well as case-diary to learned Magistrate. The case-diary is also not available in the record and only 19 exhibits are found in the record of trial Court in S.T. No. 470 of 1999 (supra).
4.2. However, learned A.G.A. did not dispute the fact that the applicant was in Central Jail, Beur, Patna, Bihar in relation to another case, and trial of co-accused - Neelendra Pandey, who was named accused in the F.I.R., was separated and committed to the Court of Sessions, which was registered as S.T. No. 470 of 1999. The record of S.T. No. 470 of 1999 reveals that Neelendra Pandey was acquitted vide judgment and order dated 06.06.2000.
4.3. Learned A.G.A. also did not dispute the fact that there is no evidence that at the time of committal of the case of the applicant, the police papers were available before the Chief Judicial Magistrate.
4.4. Learned A.G.A. has next submitted that as per his instructions, duplicate copy of the case-diary is not available in the record room, and in this regard, the negligency of Mr. Rakesh Kumar Singh, retired Reader, is found. In the report dated 23.01.2026, it is also mentioned by learned trial Judge that recreation of the case-diary is not possible and after repeated request, S.H.O. concerned reported vide letter dated 16.02.2025 that as per U.P. Police Regulation, carbon copy of the case-diary is preserved at the police station only for five years.
5. Considering the submissions of learned counsel for the parties and going through the contents of the application, record of S.T. No. 470 of 1999, photocopy of record of S.T. No. 135 of 2004 as well as other relevant documents, it is evident from the record that the F.I.R. of the case in question was lodged on 01.08.1997. After investigation, charge-sheet was submitted against three persons, namely, Neelendra Pandey, Sriprakash Shukla and the applicant. It is further evident that at the time of filing of the charge-sheet the applicant was in custody in Central Jail, Beur, Patna, Bihar in relation to Case Crime No. 230 of 1993. As Sriprakash Shukla was not appearing before the Court concerned and Neelendra Pandey was in District Jail, Lucknow, his case was separated and committed by learned Magistrate on 18.05.1999 after handing over the copies of police papers u/s 207 Cr.P.C. Once the case of Neelendra Pandey was committed by sending entire case-diary to the Court of Sessions, then it appears that only skeleton file of the applicant was lying with the Chief Judicial Magistrate. The case of Neelendra Pandey was registered as S.T. No. 470 of 1999 and charge was framed against him on 25.09.1999. The charge framed against Neelendra Pandey is reproduced as under:-
5.1. It is apparent that 11 witnesses were produced from the side of prosecution and after recording statement u/s 313 Cr.P.C., hearing was concluded and the trial Court acquitted the co-accused - Neelendra Pandey vide judgement and order dated dated 06.06.2000. The order dated 06.06.2000 passed in S.T. No. 470 of 1999 (State Vs. Neelendra Pandey) is as under:-
5.2. The trial of the applicant, i.e., S.T. No. 135 of 2004 reveals that police papers and exhibits were never sent to Chief Judicial Magistrate. The applicant was produced before the C.J.M. on 'B' warrant from Central Jail, Beur, Patna, Bihar on 13.02.2004 and the case was committed to the Court of Sessions with the observation that papers were also handed over u/s 207 Cr.P.C., however, this fact is not correct as apparently the exhibits are still available in the record of S.T. No. 470 of 1999. The trial Court committed error while framing charge against the applicant on 26.06.2013. The charge framed against the applicant on 26.06.2013 is reproduced as under:-
5.3. On perusal of aforesaid order, it appears that the said order was passed in the most mechanical and negligent manner without examining the relevant record that whether the case-diary and other relevant papers are available on the record or not.
5.4. The record further reveals that when this fact came into notice of the trial Judge that the case-diary is not available, he started making correspondence to the authorities. The order-sheet reveals that by means of report of police officials dated 03.12.2020, it is informed to the Court concerned that it is not possible to provide duplicate copy of the case-diary, as the record is related to 23 years' old issue.
5.5. On 12.01.2026, following order was passed:-
"1. Heard Shri Salil Kumar Srivastava, learned Senior Counsel assisted by Shri Rahul Srivastava and Shri Abhishek Priyadarshi, learned counsel for the applicant and Shri S.P. Tiwari, learned A.G.A. for the State.
2. Learned counsel for the applicant submits that the applicant is a law abiding citizen and he has falsely been implicated in the present case. It is further submitted that the involvement of the applicant was shown by the Investigating Officer during the course of investigation. Thereafter, charge sheet was prepared against three persons, namely, Sri Prakash Shukla, Neelendra Pandey and Rajan Tiwari (applicant). It is also submitted that the case was committed to the court of Session, which was registered as S.T. No. 470 of 1999 and during the course of trial, Sri Prakash Shukla, one of the accused, died. Thereafter, the trial was proceeded against Neelendra Pandey and applicant. However, the applicant was confined in Central Jail, Beur, Bihar in relation to S.T. No. 976 of 1999 (State Vs. Rajan Tiwari & Ors.) arising out of Case Crime No. 230 of 1993, in which, the applicant was acquitted vide order dated 14.02.2008 passed by Additional Sessions Judge, 11th, Patna. It is submitted that since the applicant was in jail in relation to Case Crime No. 230 of 1993, his case was separated from Neelendra Pandy and the trial of S.T. No. 470 of 1999 was proceeded against Neelendra Pandey only. Later on, the trial of the S.T. No. 470 of 1999 was also concluded, in which, Nilendra Pandey was acquitted vide order dated 06.06.2000.
It is next submitted that the applicant was transferred to Lucknow for the trial of the case in question and it was registered as S.T. No. 135 of 2004. It is further submitted by the learned counsel for the applicant that after conclusion of the trial against Neelendra Pandey in S.T. No. 470 of 1999, the original case diary was not called by the Presiding Officer in the case of applicant, i.e., in S.T. No. 135 of 2004 and while ignoring this fact, the charge was framed by the trial court against the applicant and also called the witnesses. It is vehemently submitted that when this fact was pointed out that even the case diary has not been called, a letter was written by the trial court to the Authorities for providing case diary, but till today, the same has not been obtained/re-constructed.
3. Submission of the learned counsel for the applicant is that in the absence of the case diary, the trial cannot be proceeded. It is lastly requested that the case of the applicant may also be decided in terms of the order dated 06.06.2000 passed in S.T. No. 470 of 1999 (State Vs. Neelendra Pandey).
4. Shri S.P. Tiwari, learned A.G.A. prays for some time to seek instructions.
5. Prayer made is allowed.
6. List this case on 28.01.2026 within top 10 cases.
7. Trial court is directed to furnish complete order sheet, i.e., from the date of registration of S.T. No. 135 of 2004 (State Vs. Rajan Tiwari) till today.
8. Indisputably, the case diary is not available before the trial court and the learned A.G.A. fairly concedes that without production of case diary, the trial should not be proceeded.
9. District & Sessions Judge, Lucknow is directed to look into the matter and ensure that the case diary, if available in the record of S.T. No. 470 of 1999, the same shall be forwarded to the trial court before which, S.T. No. 135 of 2004 is pending, and also submit a report to the this Court.
10. Till the next date of listing, the impugned proceedings of S.T. No. 135 of 2004 arising out of Case Crime No. 293 of 1997, under Sections 307, 302, 120-B I.P.C., P.S. Kaisarbagh, District Lucknow shall remain stayed.
11. Senior Registrar is directed to communicate this order to the District & Sessions Judge, Lucknow as well as the court concerned for necessary compliance, forthwith."
5.6. In pursuance of aforesaid order, a letter dated 27.01.2026 was written/forwarded by the trial Judge alongwith preliminary inquiry report no.09/2024 dated 23.01.2026. In the said report, it is observed that recreation of the record is not possible on the basis of report of police official.
5.7. The letter dated 27.01.2026 issued by learned Sessions Judge, Lucknow is reproduced as under:-
5.8. The inquiry report no.09/2024 dated 23.01.2026 is reproduced as under:-
5.9. Moreover, it is evident from the aforesaid report of Inquiry Officer/trial Judge based on the report of police official as well as concerned office that police report cannot be reconstructed.
6. In view of aforesaid facts and circumstances as well as in view of law laid down by this Court in the case of Diwan Singh Vs. State (supra), as the named accused has already been acquitted, this Court is of the view that co-accused person cannot be tried on the same set of witnesses, that too without providing complete police papers.
7. In view of observations made above, the application is allowed. The impugned orders dated 30.01.2024 and 25.04.2013, the charge dated 26.06.2013 framed against the applicant and the entire criminal proceedings arising out of Case Crime No. 293/1997 of S.T. No. 135/2004 are hereby set aside.
8. Office is directed to return the relevant records produced before this Court to the Court concerned, forthwith.
(Rajeev Singh,J.) May 06, 2026 Arpan