Allahabad High Court
Vikash Yadav And Another vs State Of U.P. And 3 Others on 29 August, 2024
Author: Sanjay Kumar Pachori
Bench: Sanjay Kumar Pachori
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:138885 Court No. - 78 Case :- APPLICATION U/S 482 No. - 24581 of 2024 Applicant :- Vikash Yadav And Another Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Hari Shankar Chaurasia,Prem Chandra Chaurasia,Prem Pushp Chaurasia Counsel for Opposite Party :- Vinod Singh,G.A. Hon'ble Sanjay Kumar Pachori,J.
1. Supplementary affidavit filed today by learned counsel for the applicants, which is taken on record.
2. The present 482 Cr.P.C. application has been filed to quash the order dated 15.07.2024 passed by Additional Sessions Judge/ Special Judge (POCSO Act), Court No. 1, Prayagraj in Special Case No. 67 of 2019 (State Vs. Vikash Yadav and another) arising out of Case Crime No. 05 of 2014, under Sections 376(2), 506 of I.P.C. and Section 5/6 of POCSO Act, Police Station- Cantt., District Prayagraj, whereby the trial court rejected the application of the applicants/ accused persons under Section 311 of Cr.P.C.
3. Brief facts of the case are that the application under Section 311 of Cr.P.C. has been filed by the applicants-accused to recall PW-1 (first informant) and PW-2 (victim) for cross-examination to ask following proposed questions, which have not been asked, which are reproduced herein under:
For PW-1 "क - घटना के समय आप कौन सा नंबर का मोबाइल फ़ोन प्रयोग करते थे ?
ख- आप द्वारा प्रयोग किया जा रहा मोबाइल फ़ोन बराबर आपके पास आरोपित घटना के दिनांक से विवेचना समाप्त होने तक प्रयोग करते रहे ?
ग - आप के बच्चो के पास किस नंबर का मोबाइल फ़ोन था, यदि नहीं तो गैर मौजूदगी में बच्चे आप से किसके फ़ोन से बात करते थे और उसका नंबर क्या था ?
घ - आपके घर आने के पहले घटना की सूचना बच्चो ने दी थी या नहीं, यदि दी थी तब कब और किस समय ?"
For PW-2 "प्रश्न न. - 1- घटना वाले दिन आप क्या कपड़े पहने थी ?
2- घटना के समय आपके पहने हुए कपड़ो को पुलिस ने अपने कब्जे में लिया था कि नहीं, यदि लिया था तो कब और कहाँ ?"
4. The trial court observed that all the questions are irrelevant and there is no evidence with regard to mobile used by the first informant. It is further observed that the questions related to victim as the clothes which were wear at the time of the incident which have also been taken possession.
5. Learned counsel for the applicants submits that the impugned order has been passed without considering the facts and circumstances of the case, bur fairly admits that the proposed questions mentioned in the application are related to mobile number and clothes only.
6. Heard, Shri Hari Shankar Chaurasia, learned counsel for the applicants, Sri Vinod Singh, learned counsel for the first informant and Sri Karunakar Singh, learned A.G.A. for the State.
7. In Dr. Rajesh Talwar and another Vs. C.B.I. and another, (2014) 16 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 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."
8. In the present case, the application under Section 311 of Cr.P.C. has been filed by the accused to call PW-1 first informant (father of the victim) and PW-2 victim for ask questions as mentioned in the application but all the questions are irrelevant and there is no case of prosecution with regard to any mobile. The questions related to place where and when clothes were taken into possession is related to documentary evidence.
9. In view of the the facts and circumstances of the case, keeping in mind the settled position of law and without going into the merit of the case, I am of the considered view that the present application u/s 482 Cr.P.C., deserves no merit and is liable to be dismissed and is, accordingly, dismissed.
Order Date :- 29.8.2024 Ishan