Allahabad High Court
Shiraz Ali Khan vs State Of U.P. And 6 Others on 22 February, 2023
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 67 Case :- APPLICATION U/S 482 No. - 2689 of 2023 Applicant :- Shiraz Ali Khan Opposite Party :- State Of U.P. And 6 Others Counsel for Applicant :- Irfan Chaudhary,Shazia Afzal,Srijan Pandey Counsel for Opposite Party :- G.A.,Narendra Kumar Singh Hon'ble Rahul Chaturvedi,J.
Heard Sri Srijan Pandey, learned counsel for the applicant, Sri Narendra Kumar Singh, learned counsel for the opposite party no.2 and learned A.G.A. for the State.
By means of the present 482 application the applicant is assailing the legality and validity of the orders dated 03.03.2020, 19.12.2020 and 05.01.2023 passed by learned Judicial Magistrate, Kayamganj in Case No. 935 of 2006 (State Vs. Jagram Ali and Others) under Section 384 I.P.C., P.S. Kayamganj, District- Farrukhabd.
At the very outset it is evident that this case is of 1991 whereby an F.I.R. was registered by one Waseem Ali under Section 382 I.P.C. against six named accused persons. The scribe of this F.I.R. is Hari Narayan Mishra and he is also one of the witness.
I have perused the impugned orders whereby the concerned Magistrate have turned down the prayer to issue commission u/s. 284 Cr.P.C. to record the testimony of Hari Narain Mishra, keeping in view his old age and ailments. In the subsequent orders under challenge, the absence of Sri Mishra, his testimony as PW-2 was closed.
It is contended by the learned counsel that these orders would cast very heavy upon the applicant as Hari Narain Mishra who is an eye witness as well as scribe of the F.I.R. and if he is not brought before the court, injustice may cause to him. It was further argued as Sri Mishra is not keeping good health and such it is not possible for him to attend the court. Under these extraordinary circumstances this application u/s. 284 Cr.P.C. was moved.
Sri Narendra Kumar Singh, counsel for the opposite party no. 2 submits that this is nothing but a naked move to further delay the prosecution which is pending since 1991. The applicants are exploring every possibility to derail the progress of trial and making frivolous applications after creating sham and imaginary stories. This time they are projecting that Sri Hari Narain Mishra, a old witness of 70 years who is scribe of the F.I.R. be examined by sending commission to record his testimony. Sri Mishra, as per counsel for the applicant is allegedly suffering from "Loss of Lordotic Curvature" resultantly it is very difficult for him to attend the court, that's why commission is required for recording his testimony and when he failed to appear then the court has closed his testimony as PW-2 by later orders of the court.
After hearing the rival submissions and keeping in view the matter is pending since 1991, I am not inclined to accede to the prayer of the applicant. However, in the interest of justice, if Sri Hari Narain Mishra is produced by the applicant before the court on 14.03.2023 at 11.00 am then the learned Magistrate shall permit him to record his testimony on that day alone and thereafter the learned counsel for the opposite party/the prosecutor shall cross examine on the same day for this purpose the opposite party shall pay Rs. 5,000/- to Sri Hari Narain Mishra for giving his deposition before the court.
It is made clear that on that date the testimony must be recorded what may and no adjournment shall be given at any cost. After recording statement the learned Judicial Magistrate shall decide the Case No.935 of 2006 after holding on day to day basis and conclude the same positively by 31.05.2023.
It is made clear that on the date fixed the testimony of Sri Hari Narain Mishra must be recorded come what may, and no adjournment shall be granted at any cost. The court concern must ensure that testimony and cross examination of Sri Mishra must conclude on that day itself. No excuse on any ground seeking adjournment shall be entertained by the concern court.
In addition to this it is further directed that after this exercise is over, the Magistrate concern shall decide the case no. 935 of 2006 after holding day to day basis and shall decide the case on merit by 31.05.2023 positively.
With this observation the present 482 application stands disposed of.
Order Date :- 22.2.2023 Vikram