Allahabad High Court
Ramendra Singh Gaur And 3 Others vs State Of U.P. And 2 Others on 16 March, 2021
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 89 Case :- APPLICATION U/S 482 No. - 1402 of 2021 Applicant :- Ramendra Singh Gaur And 3 Others Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Rajesh Kumar Singh,Manoj Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Rajesh Kumar Singh, learned counsel for applicants and learned AGA for State.
2. This application under section 482 Cr.PC has been filed challenging orders dated 02.012020 and 20.02.2020 passed by Additional Sessions Judge -III, Auraiya in Sessions Trial No. 120 of 2013 (State Vs. ramesndra Singh and others) arising out of Case Crime No.17 of 2019 under Sections 323, 308, 504, 506 I.P.C. Police Station-Sahayal,, District- Auraiya whereby application filed by opposite party no.3 under Section 216 Cr.P.C. seeking alteration of charge has been allowed and the application filed by applicants to re-examine the prosecution witnesses namely P.W.-1 and P.W.-5 in respect altered charge under Section 304 I.P.C. has been rejected.
3. Perusal of record shows that an F.I.R. dated 04.02.2009 was lodged by informant/opposite party-2 and was registered as Case Crime No.17 of 2009 under Sections 323, 308, 504, 506 I.P.C. Police Station-Sahayal,, District- Auraiya. As per the prosecution story accused persons are alleged to have assaulted informant and others. On account of above, Shailendra, Kaushlendra Pratap Singh, Virendra Singh and Smt. Geeta Devi sustained injuries. Subsequently, injured- Kaushlendra Pratap Singh, who had sustained head injury, died. Hence, upon death of aforesaid injured, an application under Section 216 Cr.P.C., seeking alteration of charge, was filed by opposite party no.3, Shankar Singh, father of deceased (Kaushlendra Pratap Singh). Aforesaid application dated 08.07.2016 was contested by accused-applicants as they filed objection to the same. Ultimately, the same came to be allowed by court below vide order dated 28.08.2019. Accordingly, thereafter a charge was framed under Section 304 I.P.C. also. This order dated 28.09.2019 came to be challenged by applicants before this Court by means of a Crl. Misc. Application (under Section 482 Cr.P.C.) No. 39777 of 2019 (Ramendra Singh Gaur and three others Vs. State of U.P. and another). Above application came to be disposed of vide order dated 11.11.2019. For ready reference order dated 11.11.2019 is reproduced herein-under:
"This application u/s 482 Cr.P.C. has been filed seeking the quashing of order dated 28.09.2019 as well as the entire proceedings of S.T. No.120 of 2013 (State Vs. Ramendra Singh & Others) arising out of Case Crime No.17 of 2009, under sections 323, 308, 504, 506 I.P.C., Police Station- Sahayal, District- Auraiya.
Heard learned counsel for the applicants.
At the very outset learned counsel for the applicants says that he does not want to press the prayer with regard to quashing of the impugned order as well as entire proceedings of the case. The only submission made by the counsel is that the applicants want to appear before the court and submit to the jurisdiction and procure bail under added sections. It was emphasized by the counsel that applicants have already been released on bail under all other sections and the bail was granted after considering the entire facts of the case. No new fact can be said to have been hardly added in the record of the case. Submission is that a protective direction may be given to the applicants to procure bail.
Heard learned A.G.A. and perused the record.
In the light of the submissions made by the counsel the prayer so far as it seeks quashing of the impugned order as well as entire proceedings of the case, the same stands dismissed.
However, it is observed that if the bail has not been obtained as yet, the accused may appear before the court below and apply for bail within three weeks from today. The court below shall make an endeavour to decide the bail application, if possible, keeping in view the observations made by the Court in the Full Bench decision of Amrawati and another Vs. State of U.P. 2004 (57) ALR 290 and also in view of the decision given by the Hon'ble Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (3) ADJ 322 (SC).
In the aforesaid period or till the date of appearance of the accused in the court below, whichever is earlier, no coercive measures shall be taken or given effect to.
It is further clarified that this order has been passed only with regard to the accused on behalf of whom application has been moved in this Court.
With the aforesaid observations this application is finally disposed off. "
4. Subsequently, an application dated 20.12.2019 was filed by opposite party no.3, Shankar Singh, father of the deceased stating there that since his son had died during the pendency of the criminal trial on account of head injury sustained by him and the charge has also been altered under Section 304 I.P.C., therefore only the Doctor, who has already been examined, be recalled to prove the charge under Section 304 I.P.C., i.e., death of deceased, Kaushlendra Pratap Singh has occurred on account of head injury sustained by him. This application dated 20.12.2019 came to be allowed by court below by means of order dated 02.01.2020. Immediately, thereafter an application 14.02.2020 was filed on behalf of accused stating therein that witnesses, who have already been examined, i.e, P.W.1 to P.W.5 be recalled as charge has been altered under Section 304 I.P.C. This application came to be rejected by means of order dated 20.02.2020. Thus feeling aggrieved by orders dated 20.02.2020 and 02.01.2020, applicants have now approached this Court by means of present application under Section 482 Cr.P.C.
5. At the very outset, learned A.G.A. has raised a preliminary objection by submitting that the impugned orders were passed on 01.02.2020 and 20.02.2020, whereas present application under Section 482 Cr.P.C. has been filed on 18th January, 2021 i.e. almost after expiry of one year from the date of passing of the impugned orders. As such present application is hopelessly is barred by limitation. Moreover, the laches in filing present application have not been explained in the affidavit accompanying the application under Section 482 Cr.P.C. Apart from above, there is nothing on record to show that Doctor, who has been recalled to prove the fact as to whether death of deceased occurred on account of head injury sustained by him in the incident in which criminality was committed has been examined or not. It is lastly submitted that factum required to be proved subsequent to alteration of charge can be proved only by the Doctor, who had earlier examined the injured. As such no illegality has been committed by court below in rejecting the application filed by accused-applicants for recall of P.W.1 to P.W.5.
6. When confronted with aforesaid, learned counsel for applicants could not over come the same.
7. In view of above, no occasion arises before this court to entertain this application. Present application fails and is liable to be dismissed.
8. Accordingly, present application is dismissed.
Order Date :- 16.3.2021 YK