Allahabad High Court
Waseem vs State Of U.P. And Another on 7 February, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD ? Neutral Citation No. - 2024:AHC:21168 Court No. - 93 Case :- APPLICATION U/S 482 No. - 40311 of 2023 Applicant :- Waseem Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ravindra Sharma Counsel for Opposite Party :- G.A. Hon'ble Arun Kumar Singh Deshwal,J.
1. Vakalatnama, filed by Sri Vikas Sharma, learned counsel for opposite party No.2, is taken on record.
2. Heard Sri Ravindra Sharma, learned counsel for the applicant, Sri Vikas Sharma, learned counsel for opposite party No.2 and Sri Rajeev Kr. Singh, learned A.G.A. for the State.
3. The instant application has been filed seeking quashing of the impugned order dated 2.9.2023 passed by Sessions Judge, Meerut in Sessions Case No. 114 of 2008 (State vs. Izlal and others), arising out of Case Crime No. 190 of 2008, u/s 147, 148, 149, 364, 302, 201, 404 I.P.C., P.S. Kotwali, District Meerut.
4. Facts that give rise to the present proceeding, are that an F.I.R. dated 23.5.2008 was lodged by the opposite party No.2 against unknown persons u/s 364, 302, 201 I.P.C. and subsequently, after the investigation, police filed charge sheet against applicant and other co-accused persons on 19.8.2008, under Sections 147, 148, 149, 364, 302, 201 I.P.C. and Section 2/3 Gangsters Act. Thereafter, a discharge application was moved by the applicant as well as other co-accused persons before Special Judge (Gangsters Act), Meerut, which was rejected on 19.1.2010. Thereafter, the order dated 19.1.2010 was challenged before this Court by way of Criminal Revision No. 343 of 2010. The revision was partly allowed by the Court by order dated 20.8.1010 and the charges, framed u/s 2/3 Gangsters Act, were quashed and the rest of the charges were maintained and the court below was directed to proceed further. Thereafter, the Special Judge (Gangsters Act), Meerut proceeded with the trial and recorded the statement of prosecution witnesses and also the statement u/s 313 Cr.P.C. Thereafter, the applicant filed an application before the Special Judge (Gangsters Act), Meerut that the court had no jurisdiction to proceed further because the charge under Gangsters Act has been quashed by the High Court in Criminal Revision No. 343 of 2010 and requested that he may be discharged. That said application was rejected by the court on 29.9.2010.
5. Thereafter, the applicant and other co-accused persons challenged the order dated 29.9.2010 before this Court by way of Criminal Revision No. 4425 of 2010. This revision was allowed on 31.10.2013 and order dated 29.9.2010 was set aside with direction to the Special Judge to immediately transfer the record to the Sessions Judge, Meerut with further direction that the Sessions Judge, Meerut will proceed further as if the same has been committed to him u/s 193 Cr.P.C. Thereafter, the Sessions Judge transferred this case to the Special Judge (Anti Corruption Court), Meerut. In the meantime, opposite party No.2 also challenged both the orders dated 20.8.2010 as well as 31.10.2013, passed by this Court in Criminal Revision Nos. 343 of 2010 and 4425 of 2010, respectively, by way of Criminal Appeal Nos. 1663-1664 of 2015. Initially, the impugned orders were stayed by the Hon'ble Apex Court, but subsequently, the above criminal appeals were dismissed by the Apex Court on 19.7.2023.
6. Thereafter, the Special Judge (Anti Corruption Court), Meerut framed charges on 25.8.2023 under the sections of I.P.C. which were confirmed by this High Court in Criminal Revision No. 343 of 2010. Thereafter, the applicant moved an application dated 28.8.2023 u/s 217 Cr.P.C. for compliance of the provisions of Section 217 Cr.P.C. to cross examine the witnesses, if the prosecution is not interested to re-examine the witnesses as the charges were re-framed. The said application was rejected by the court below by order dated 2.9.2023 on the ground that the Hon'ble Apex Court had already observed in its order that the evidence had already been recorded and the trial court was directed to proceed with hearing expeditiously and while passing the impugned order the court below also kept in mind that the High Court had already confirmed the charges framed under various sections of I.P.C., therefore, the court below proceeded further.
7. Learned counsel for the applicant submits that the impugned order is illegal, being against the provision of Section 217 Cr.P.C. as Section 217 Cr.P.C. specifically directs the trial court that whenever the charge is altered or added, then it will allow the prosecutor and the accused to recall or re-examine any witness with reference to such alteration or addition, but in present the case the court below illegally rejected his application by not directing the prosecution to re-examine the witnesses and also failed to permit the applicant to cross examine the witnesses.
8. Per contra, learned counsel for opposite party No.2 and learned A.G.A. stated that it is not a case of alteration or addition of charges because the Hon'ble High Court in Criminal Revision No. 343 of 2010 simply quashed the charges under the Gangsters Act, but maintain the other charges under various sections of I.P.C. and the court below after receiving the record re-framed same charges on 25.8.2023 and it did not add or alter any charge. It is further submitted that even the Apex Court, while hearing the criminal appeal against the order of the High Court, passed in criminal revision, directed the court below to proceed further with the observation that the evidence has already been recorded and the matter has been delaying for many years, therefore, it should be heard expeditiously.
9. Considering the rival submissions of the parties and on a perusal of record, it appears from Section 217 Cr.P.C. that whenever the charges are altered or added, then the trial court will give opportunity to the prosecutor or accused to examine or re-examine the witnesses Section 217 Cr.P.C. is being quoted as below:-
"Section 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."
10. In the present case the charges are neither altered nor added, but it was re-framed in the same sections which were already confirmed by this High Court in Criminal Revision No. 343 of 2010. Even otherwise Section 217 Cr.P.C. does not compel the prosecutor to produce the evidence again even the charges are re-framed. Apart from this, Section 217 Cr.P.C. itself provides that it is not always necessary to permit the prosecutor and accused to recall the witnesses for examination or re-examination. It is the discretion of the court and if the court finds that said re-examination of witness(s) is for the purpose of vexation or delay in trial, the court may refuse the prosecutor or accused to re-examine or cross-examine the witness(s).
11. Even otherwise this Court is of the view that the charges have initially been framed on 21.4.2010 under several sections of I.P.C., including the Gangsters Act but the High Court in Criminal Revision No. 343 of 2010, quashed the charges under Gangsters Act and maintained the charges under various sections of I.P.C. and directed the court below to proceed further and even the Apex Court also observed that the evidence has already been recorded and directed the court below to proceed further, therefore, it cannot be said that the charges were altered or added. The charges were the same which were framed on 21.4.2010 except the charge under the Gangsters Act which was quashed by the High Court.
12. Even otherwise, the Apex Court already directed the court below to proceed with trial expeditiously if possible on day to day basis, therefore, if the plea of the applicant is accepted, then it will further delay the trial despite the fact that applicant had got the opportunity to cross examine the witnesses, examined by the prosecution. This Court is of the view that technicality cannot come into the way of meeting the ends of justice.
13. In view of the above, this Court does not find any ground to interfere in the impugned order.
14. Accordingly, the application is rejected.
15. As the Apex Court has already directed the court below to proceed with the trial on day to day basis, the court below is, therefore, directed to proceed with the trial on day to day basis and proceed further as directed by the Apex Court in the judgement dated 19.7.2023 passed in Criminal Appeal No. 1663-1664 of 2015.
Order Date :- 7.2.2024 Vandana