Allahabad High Court
Khalid Azeem @ Ashraf vs State Of U.P. on 1 February, 2023
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 87 Case :- APPLICATION U/S 482 No. - 33862 of 2022 Applicant :- Khalid Azeem @ Ashraf Opposite Party :- State of U.P. Counsel for Applicant :- Khan Saulat Hanif, Shadab Ali Counsel for Opposite Party :- G.A. Hon'ble Dinesh Kumar Singh,J.
1. Heard Mr. Daya Shankar Mishra, learned Senior Advocate, assisted by Mr. Shadab Ali, representing the accused-petitioner, as well as Mr. Manish Goyal, learned Additional Advocate General, assisted by Mr. Rajesh Mishra and J.B. Singh, learned Additional Government Advocate and learned Additional Government Advocate-I respectively, representing the respondent-State, Mr. Rakesh Dubey, learned counsel representing the complainant, and gone through the entire file.
2. The present petition under Section 482 Code of Criminal Procedure, 1973 (hereinafter referred to as the "CrPC") has been filed, impugning the orders dated 19.07.2022 and 05.09.2022 passed by the learned Additional Sessions Judge/Special (MP/MLA), Allahabad in Sessions Trial No. 1156 (State Vs Ashraf alias Khalid Azeem), arising out of Case Case No.0270 of 2007, under Sections 147, 148, 323, 340, 342, 364, 504, 506 and 120 IPC, Police Station Dhoomanganj, District Prayagraj.
3. Complainant, Umesh Pal is an eye-witness of triple murders' case, Raju Pal, the then sitting M.L.A., and two others, in which Ateeq Ahmad, an ex-Member of Parliament, who is facing 98 criminal cases of heinous nature, is a prime accused. As per the allegations in the FIR lodged at Case Crime No.0270 of 2007, which was registered on complaint of complainant, Umesh Pal, on 05.07.2007, the complainant is said to be the member of Bahujan Samaj Party (hereinafter referred to as the "BSP") and was also Zila Panchayat Member; on 25.01.2005, the then sitting Member of Uttar Pradesh Legislative Assembly, Raju Pal was killed by the then Member of Parliament, Ateeq Ahmad, his brother Ashraf and other accused of his gang. The complainant is an eye-witness in the said case. He was being threatened by Ateeq Ahmad and his brother and other members of the gang that if he would give evidence against them, he and his entire family would be wiped-out. When the complainant did not bother about the threats, on 28.02.2006, same persons sitting in the Land Cruiser vehicle of Ateeq Ahmad numbered as DL-1CG/8418 waylaid the complainant and another car numbered as KA-95-Z/1118 came from behind. From the said car, Dinesh Pasi, Ansar Baba and one another got down and on gun-point the complainant was made to sit in the car. The complainant found Ateeq Ahmad and three other persons sitting in the car having rifles. These persons started assaulting the complainant and took him to office of Ateeq Ahmad at Chakiya. One person brought motorcycle of the complainant to the said office of Ateeq Ahmad. The complainant was locked in a room. He was badly assaulted and given electric shocks. He was threatened that if he would not change his stand in the murder case of Raju Pal, the then sitting M.L.A., he and his entire family would be wiped out. It was also said that a paper for deposition of the complainant was prepared by Ateeq Ahmad through his lawyer, Mr. Khan Hanif, which was given to the complainant, and he was asked to memorize what was written on the paper and give the same statement, otherwise the complainant would be cut into pieces and given to dogs. Ateeq Ahmad, on the same night, sent his men to house of the complainant and complainant and his family was threatened and, they were warned that if any-one in the family would make any telephonic call to the police, the complainant would be killed.
4. The complainant was kept in a room and was bruised and assaulted mercilessly. The complainant was escorted to the Court and the persons, accompanying him, were continuously threatening him that he should say what was written on the paper given by the lawyer of Ateeq Ahmad, otherwise his entire family would be wiped out. The complainant was so-much terrorized and feared for his life and lives of his family members that he gave the same statement as was written on the paper which was handed over to him.
5. It was also alleged that the complainant had approached this Court for his security. The Security Committee also assessed the threat perception of the complainant, but it was said that he would be given the security on 100% payment. As the complainant's financial position was not such that he could afford the security on 100% payment, Mafia Don, Ateeq Ahmad took benefit of this fact and coerced him to give false statement in the Court in the murder case of Raju Pal, the then sitting M.L.A. and two others. On this complainant, the FIR came to be registered, as mentioned above at Police Station Dhoomanganj, District Prayagraj.
6. The police, after investigating the offence, submitted charge-sheet on 26.07.2007 against eleven accused, including Ateeq Ahmad and others, including the present accused-petitioner. The learned trial Court had framed charges on 28.07.2007, and the evidence of the prosecution got closed on 16.08.2016 and 17.08.2016. After recording statement of the accused under Section 313 CrPC, 50 defence witnesses had been examined and opportunity to further examine the defence witnesses got closed on 11.11.2022. In the meantime, one application came to be filed on 17.08.2016 on behalf of two co-accused under Section 311 CrPC to provide further opportunity to cross-examine the complainant, who was examined as P.W.-1. The said application filed by the two co-accused was rejected by the learned trial Court vide order dated 17.08.2016.
7. Again on 05.02.2018, two other co-accused, who had filed the application on 17.08.2016, along with another accused, filed an application under Section 311 CrPC with prayer to further cross-examine the complainant and PW-2. The learned trial Court vide order dated 09.02.2018 rejected the said application. Against the said order dated 09.02.2018 passed by the trial court, two co-accused along with accused, Javed filed petition under Section 482 CrPC No. 11218 of 2018 before this Court. However, this Court vide order dated 05.04.2018 had dismissed the said petition. Against the said order passed by this Court, co-accused, Javed approached the Supreme Court by way of filing Special Leave Petition (Cri.) No.4256 of 2018, which got dismissed by the Supreme Court vide order dated 04.07.2018 as withdrawn. Despite the said order dated 05.04.2018 passed by this Court, the learned trial Court vide order dated 08.12.2019 again allowed the application filed by two co-accused for further cross-examination of the complainant and PW-2. This order came to be challenged before this Court by way of filing Application U/s 482 No. 820 of 2020.
8. The said application was allowed by this Court vide order dated 16.01.2023 and the order dated 18.12.2019 passed by the learned Special Judge (MP/MLA Court), Allahabad in Sessions Trial No.1336 of 2009 was set-aside. The learned trial Court was directed to conclude the trial finally and pronounce the judgment within a period of two months from the date of the order.
9. In respect of the said offence, two trials; Sessions Trial Nos. 1336 of 2019 ( State Vs Ateek Ahmad and others) and 1156 of 2011 (State Vs. Ashraf alias Khalid Azeem) are pending. Both the trials are being conducted jointly. An application came to be filed on behalf of the accused-petitioner bearing Application No. 48-Ba for examining 22 defence witnesses and this list of 22 proposed witnesses was styled as interim list.
10. The learned trial Court, while considering the said application, has noted the facts and the tactics being employed by the accused to delay/prolong the trial as much as they could succeed. The learned trial Court in its order dated 19.07.2022 has noted that on 27.09.2018 List No.257-Kha for calling 21 witnesses was filed by accused, Ateeq Ahmad, who is at present in Sabarmati Jail, Ahemdabad, Gujarat. The learned trial Court, after considering the facts & circumstances, relevancy and reasonableness etc permitted 5 witnesses to be examined. Thereafter, 43 more defence witnesses have been examined.
11. Out of 21 witnesses in the list 257-Kha, 13 witnesses had been examined, whereas the Court had permitted only 5 witnesses from the said list to be examined as defence witnesses. Therefore, the Court vide order dated 19.07.2022 had closed List 257-Kha. Thereafter, again accused, Ateeq Ahmad had given Application No.329-Ba for examining 16 more witnesses. Out of these 16 witnesses, 9 witnesses had been examined. The Court held that 43 witnesses had been examine by Ateeq Ahmad and, therefore, sufficient opportunity for examining the defence witnesses had been given to accused, Ateeq Ahmad and others. Thereafter, co-accused, Asif alias Malli had given Application No.327-B for examining 6 defence witnesses. This application was filed on 08.11.2019. Out of these 6 witnesses, 3 witnesses had already been examined as defence witness-32, defence witness-3 and defence witness-41. Thereafter, the co-accused, Asif alias Malli had also examined 3 other witnesses as defence witness-17, defence witness-16 and defence witness-13. Thereafter, another application was given by co-accused, Asif alias Malli for examining 5 more witnesses and the said application was numbered as 350-Ba. Thus, co-accused, Asif had given two lists for examination of 11 witnesses, out of whom 3 witnesses had already been examined and, therefore, he was given last opportunity to clarify that out of those lists which further defence witnesses he would like to examine.
12.. Accused, Dinesh Pasi had given an application numbed as 328-Ba for examination of 4 witnesses and thereafter he filed Application-350-Ba for examining 5 more witnesses. Thus, in these two applications, co-accused, Dinesh Pasi had sought examination of 9 defence witnesses. Out of these 9 defence witnesses, 3 witnesses had already been examined. The said co-accused was also directed to clarify that out of two lists of witnesses, whom he would like to examine as further defence witnesses.
13. Co-accused, Khan Shaulat Hanif filed Application No. 329-Kha for examining 4 defence witnesses. Before filing this application, co-accused, Khan Shaulat Hanif filed Application No. 255-Kha on 15.09.2018 for examining Mohd. Amir Naqvi as defence witness. The said co-accused, Khan Saulat Hanif had already examined two witnesses, defence witness-4 and defence witness-15 on 21.01.2019 and 28.01.2019 respective. He was also directed that out of 4 witnesses, two witnesses had already been examined and, therefore, he should make clear on the next date to whom he would like to examine further.
14. Co-accused, Israr had examined witness-10 and witness-11 as defence witnesses. Co-accused, Ateeq Ahmad and Israr had been given one last opportunity to lead defence witness(s). Learned counsel for the accused-petitioner requested for time to submit list of defence witnesses and the Court gave last opportunity to submit list of defence witness. Accused-petitioner, Khalid Azeem alias Ashraf had given Application No.48-Ba to examine 22 defence witnesses and this application was styled as interim list. The Court found that there is no provision for filing interim list, giving names of the defence witnesses. The Court further found that out of this list, most of them had already been examined previously by co-accused accused, Ateeq Ahmad, who were also proposed as defence witnesses by him. Accused-petitioner Khalid Azeem alias Ashraf had not examined any defence witness. In view thereof, out of List 48-Ba, the Court allowed the examination of 5 witnesses, which the accused thinks appropriate, relevant and material and the said application was disposed of vide order dated 19.07.2022, fixing 29.07.2022 for examination of further defence witnesses.
15. After the aforesaid order was passed, another application came to be filed on behalf of the accused-petitioner, Khalid alias Azeem alias Ashraf, praying therein to recall the order dated 19.07.2022 and to allow him to examine all 22 defence witnesses, named in the list 48-Ba filed by him.
16. The learned trial Court vide impugned order dated 05.09.2022, in detail listed out the facts and the tactics employed by the accused-petitioner and held that out of list of 22 defence witnesses, the trial Court vide the impugned order dated 19.07.2022 had directed for examination of 5 witnesses, which the accused thinks appropriate, relevant and material witnesses. It is further said that the Application No. 48-Ba was decided by a detailed order and there is no provision for recalling/reviewing the order passed on merit and, thus, the application was rejected.
17. On behalf of the accused-petitioner, it is submitted that the trial Court cannot fix the number of defence witnesses to be examined during the course of trial. It is further submitted that the equal treatment should be given to the prosecution witnesses and the defence witnesses. It is further submitted that since the order dated 19.07.2022 is against the law, it was incumbent upon the learned trial Court to recall/review the said order and allow the accused-petitioner to examine all the 22 defence witnesses. In support of his contention, learned counsel for the accused-petitioner has placed reliance upon the following judgments:-
1. 1954 0 Supreme (SC) 76 (Ronald Wood Mathams and others Vs. State of W.B.);
2. 2022 0 Supreme(SC 516 (Mahendra Singh and others Vs. State of M.P.);
3. 2021 0 Supreme (Ker) 29 (Antony Rosario Fernando Vs. State of Kerala);
4. 2002 0 Supreme (SC) 56 (State of Haryana Vs. Ram Singh); and
5. 1981 0 Supreme (SC) 77 (Dudh Nath Pandey Vs. State of U.P)
18. On the other hand, on behalf of the respondents, the petition has been opposed and it is submitted that there is a bar under Section 362 CrPC for reviewing/recalling the order passed on merit by the criminal Court. It is further submitted that the trial of two cases is joint and the evidence is common. From the impugned order, it is evident that more than 50 defence witnesses had already been examined and the accused are just delaying/prolonging the trial with oblique motive and extraneous purposes. It is further submitted that it is always open to the Court concerned to prune the list of witnesses submitted by the accused and the Court is vested with power under Section 233 CrPC to refuse the request if it appears that the same has been made for vexation, delay or for defeating the ends of justice.
19. I have considered the submissions advanced by the learned counsel for both the parties.
20. The impugned order dated 19.07.2022 passed by the learned trial Court whereby Application No. 48-Ba filed by the accused-petitioner to examine 22 defence witnesses was pruned to 5 defence witnesses became final inasmuch as the said order was passed on merit after considering the submissions and facts & circumstances of the case. Therefore, in my view, the application dated 11.08.202 to recall/review the said order was not maintainable and the trial Court has correctly rejected the said application vide the impugned order dated 05.09.2022. There is a complete bar for reviewing/recalling an order passed on merit by the criminal Court. The impugned order dated 19.07.2019 was an order on merit, which had attained finality and there was no question of filing application dated 11.08.2022, seeking recall/review of the said order, therefore, so far as challenge to the order dated 05.09.2022 is concerned, I do not find that the said order suffers from any illegality and requires an interference by this Court in exercise of power under Section 482 CrPC. The challenge to the order dated 05.09.2022, thus, fails.
21. Section 233 CrPC reads as under:-
" 233. Entering upon defence.
(1) Where the accused is not acquitted under section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof.
(2) If the accused puts in any written statement, the Judge shall file it with the record.
(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice."
22. Perusal of the said provisions would disclose that the Court is bound to issue process for ascertaining the stand of the witnesses unless the Court opines that summoning of witnesses has been filed for the purpose of vexation, delay or defeating the ends of justice. The Indian judicial system provides right to fair trial and the fair trial would include proper opportunity to prove the innocence of the accused. The accused has right to produce evidence in support of his defence, but if the Court, for the reasons recorded, finds that the accused is filing the list of witnesses for the purpose of vexation, delay or defeating the ends of justice, the Court is empowered to prune such list and allow only relevant material/witness(s) to be examined in defence. The order impugned would disclose that more than 50 defence witnesses have been examined. The case is of the year 2007. Despite the time framed by the Supreme Court vide order dated 04.07.2018 passed in Special Leave Petition (Cri.) No.4256 of 2018 and this Court vide order dated 16.01.2023 passed in Application U/S 482 No.820 of 2020 to complete the trial of the case at an early date, say within a period of two months, the accused, one after another, are filing the application to produce the same and more witnesses, who have already been examined. The accused are adopting the tactical approach to delay and drag the trial to defeat the ends of justice. Such a course cannot be allowed. The accused cannot be allowed to prolong the trial endlessly and, therefore, I am of the view that the learned trial Court has correctly closed the list and vide the impugned order allowed the accused-petitioner to adduce 5 more witnesses to whom he thinks are the material witnesses in defence. In view thereof, I find no substance in the present petition and, therefore, the same is hereby dismissed.
Order Date :- 1.2.2023 MVS/- [D.K. SINGH, J.]