Allowed

Jaishanker Pandey and Another v. State of U.P. and Another

Allahabad HC14 Dec 2020CRLR/1864/2007

Case brief

AI extract

What is this about?

In a criminal revision, the court allowed the challenge against the trial court's refusal to summon a medical witness whose report had been proved via secondary evidence, holding that the lower court exceeded jurisdiction.

What did the court decide?

The impugned order dated 14.06.2007 was set aside and the criminal revision was allowed. The trial court was directed to conclude proceedings within six months.

Jaishanker Pandey and Another Vs State of U.P… — Criminal Trial and Appeal | Allahabad HC (2020)

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Court No. - 10

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Case :- CRIMINAL REVISION No. - 1864 of 2007 Revisionist :- Jaishanker Pandey And Another Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Rama Nand Pandey,P.N. Pandey

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Counsel for Opposite Party :- Govt. Advocate,Vishesh Kumar

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Hon'ble Rohit Ranjan Agarwal,J. In Re: Criminal Misc. Substitution Application

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This substitution application has been filed by legal heirs of opposite party no. 2 for substituting them as legal heirs as Sri Krishna Chandra, opposite party no. 2, died on 13.01.2017, leaving behind legal heirs as given in para 2 of the affidavit to the substitution application.

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In view of above, substitution application stands allowed.

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Let name of opposite party no. 2 be struck off from the array of parties and name of legal heirs be substituted.

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In Re: Criminal Revision

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Heard Sri Pradeep Narayan Pandey, learned counsel for the revisionists, learned A.G.A. for the State and Sri Vishesh Kumar, learned counsel for opposite party no. 2.

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This revision has been filed under Section 397 read with Section 401 Cr.P.C., assailing the order dated 14.06.2007 passed by Additional Sessions Judge/ Fast Tract Court (F.T.C.-I), Basti in Sessions Trial No. 128/99 (State vs. Ram Niranjan and others), under Sections 147, 148, 324, 323, 504, 506 I.P.C. rejecting the application Paper No. 222 Kha for summoning Dr. A.C. Srivastava.

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Facts in nutshell are that two cross-FIRs were lodged on 14.01.1998, one was lodged at 9:30 a.m. being Case Crime

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No. 23 of 1998, under Sections 147, 148, 149, 307, 323, 504, 506, 324 I.P.C., P.S.- Kotwali, District Basti against the present revisionists. Another F.I.R. was lodged by the revisionists against informant/ opposite party no. 2 which was lodged as Case Crime No. 23A of 1998, under Sections 147, 148, 324, 323, 504, 506 I.P.C., P.S.- Kotwali, District- Basti at 10:40 a.m. on same day. Both the revisionists were medically examined on 16.01.1998 in District Jail, Basti by one Dr. A.C. Srivastava. It appears that after investigation, matter was committed to court of sessions and Case Crime No. 23 of 1998 was registered as Sessions Trial No. 128 of 1999 (State vs. Ram Niranjan and others), while Case Crime No. 23A of 1998 was registered as Sessions Trial No. 271 of 2000. Both sessions trial were transferred to Fast Tract Court-I, Basti where both the trials are proceeding together.

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As the whereabouts of Dr. A.C. Srivastava was not known, hence medical report of revisionists was proved and exhibited by one Dr. R.P. Verma (PW-4) in Sessions Trial No. 271 of 2000. According to revisionists, as soon as, whereabouts of Dr. A.C. Srivastava came to their knowledge, they moved an application which was marked as Paper No. 182 Ka in Sessions Trial No. 271 of 2000 for summoning him under Section 311 Cr.P.C. The said application was dismissed on 19.04.2007 as it did not find mention of the address, hence again an application was filed on 24.04.2007 as Paper No. 183 Kha, disclosing the address of Dr. Srivastava. The said application was rejected vide order dated 24.04.2007 and the same was challenged before this Court which is still pending.

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According to the revisionists, at the time of preparation of case it was advised by local counsel that evidence of Dr. Srivastava was necessary being primary evidence, as such an application was moved on 30.05.2007 under Section 233(3) Cr.P.C. for summoning Dr. Srivastava in Sessions Trial No. 128 of 1999. The court below vide order dated 14.06.2007 rejected the same on the ground that medical report of revisionists had been proved by secondary evidence of Dr. R.P. Verma, as such there was no need of summoning Dr. A.C. Srivastava.

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Learned counsel for the revisionists submitted that provisions of Section 233(3) Cr.P.C. is clear as the accused has a right for compelling attendance of any witness or production of any document for his defence and on application being made, the court shall issue such process unless there is some cogent ground for refusal.

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In the present case, court below had relied upon the secondary evidence of Dr. R.P. Verma and has rejected the application for recording of primary evidence of Dr. A.C. Srivastava who had examined the injured i.e. revisionists.

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On the other hand, learned counsel for the informant submitted that the medical report of the revisionists had already been proved by Dr. R.P. Verma, thus, there is no need of producing Dr. A.C. Srivastava and the revisionists are trying to delay the matter.

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I have heard learned counsel for the parties and perused the material on record.

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From the perusal of provisions of Section 233(3) of Cr.P.C., accused has every right to adduce evidence in his

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defence and in case, he applies for issue of process for compelling the attendance of any witness or production of any document or thing, the court has to issue such process unless it considers for reasons to be recorded that such application should be refused on the ground that it is made for purpose of delay or defeating the ends of justice, otherwise the witness has to be summoned.

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In the present case, court below had not recorded any finding to the effect that application moved by revisionists, 222 Kha was for purpose of delay or to defeat ends of justice, but it had recorded that since the medical report has been proved by Dr. R.P. Verma as the secondary evidence, the same need not be proved by the doctor who had examined the revisionists i.e. Dr. A.C. Srivastava.

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Thus, court below had exceeded its jurisdiction by rejecting the application of revisionists under Section 233(3) Cr.P.C., who wanted the attendance of Dr. A.C. Srivastava as a primary evidence in their defence.

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The order dated 14.06.2007 suffers from procedural irregularity and cannot be sustained and, thus, is set aside and revision stands allowed .

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However, it is made clear that the court below shall make every endeavour to conclude Sessions Trial no. 128 of 1999 (State vs. Ram Niranjan and others) within six months. Is is further provided that no adjournment shall be granted to either of the parties.

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Order Date :- 14.12.2020 V.S.Singh

Jaishanker Pandey and Another v. State of U.P. and Another

Case brief

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Jaishanker Pandey and Another v. State of U.P. and Another

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