Quashed

Vishal Nath Mishra and Ors. v. State of U.P. and Anr.

Allahabad HC21 Jul 2022/1054/2017

Case brief

AI extract

What is this about?

The High Court allowed an application under Section 482 CrPC to quash an impugned order altering the charge. The Court held that the trial court lacked jurisdiction to review its earlier rejection of the same application without additional evidence and quashed the subsequent order.

What did the court decide?

The impugned order dated 31.01.2017 was quashed and the trial court was directed to proceed with the trial.

Vishal Nath Mishra and Ors. Vs State of U.P. and… — Criminal Trial and Appeal | Allahabad HC (2022)

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Court No. - 10

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Case :- APPLICATION U/S 482 No. - 1054 of 2017

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Applicant :- Vishal Nath Mishra And Ors. Opposite Party :- State Of U.P. And Anr. Counsel for Applicant :- Krishana Kumar Singh Counsel for Opposite Party :- Govt. Advocate,Bagesh Kr. Shukla,Chandra Bhushan,Janardan Singh

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Hon'ble Dinesh Kumar Singh,J.

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Heard Mr. K.K. Singh, learned counsel for the applicants, Mr. Ashwani Kumar Singh, learned A.G.A., for the respondent no. 1-State, as well as Mr. Janardan Singh, learned counsel for respondent no. 2, and gone through the record.

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By way of this application under Section 482 CrPC the applicants have impugned the order dated 31.01.2017 passed by the learned Additional Sessions Judge, Court No. 6, Gonda in Sessions Trial No.354 of 2009 (State Vs. Vishal Nath Mishra and others) arising out of Crime No.0126 of 2009, under Sections 306, 498-A and 494 IPC lodged at Police Station Umari Begumganj, Gonda on an application filed by the prosecution under Section 216 CrPC for alteration of charge.

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Initially, the trial Court framed charged against the applicants under Sections 306, 498A and 494 IPC vide order dated 05.02.2010; one application under Section 216 CrPC was filed after the complainant (PW-1) was examined in the Court for alteration of charge under Section 302 IPC read with Section 498-A IPC; the said application came to be rejected vide detailed order dated 09.08.2010 by the learned trial Court, holding that there was no ground to alter the charge under Section 302 IPC and the aforesaid order became final as no further proceedings were undertaken against the order dated 09.08.2010, rejecting the application for alteration of the charge.

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During the course of trial, an application under Section 311 CrPC was filed for summoning two persons as witness, namely, Mahesh Narain Upadhyay and Ram Sunder Pandey. The learned trial Court allowed the said application vide order dated 20.01.2017 and aforesaid two persons were examined as PW-7 and PW-8. After their examination as PW-7 and PW-8, another application under Section 216 CrPC came to be filed by the prosecution for alteration of the charge under Section 302 IPC. However, the said application was also rejected by the learned trial Court vide order dated 26.08.2011, which would disclose

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that the evidence of PW-7, Mahesh Narain Upadhyay and PW8, Ram Sunder Pandey was considered and the learned trial Court was of the opinion that the charge under Section 302 is not attracted.

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Strangely enough, thereafter another application came to be filed for alteration of charge by the prosecution and on the said application the impugned order has been passed, without there being any further evidence, which was not considered in the order dated 26.08.2011. If there is no evidence, which has been led after the order dated 26.08.2011, the trial Court had no power to review its order dated 26.08.2011. The impugned order amounts to review the earlier order passed by the learned trial Court on the same evidence on which the earlier application under Section 216 CrPC for alteration of charge came to be rejected vide order dated 26.08.2011.

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In view of above, this Court is of the view that the impugned order dated 31.01.2017 amounts to review the earlier order dated 26.08.2011 passed by the learned trial Court and the learned trial Court did not have power to review its earlier order for alteration of charge.

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Thus, the application is allowed. Consequently, the impugned order dated 31.01.2017 hereby quashed. The learned trial Court is directed to proceed with the trial and conclude the same within a period of two months from the date certified copy of this order is served/submitted.

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Order Date :- 21.7.2022 MVS/-

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Digitally signed by MANOJ VIKRAM SINGH CHAUHAN Date: 2022.07.22 10:49:35 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Vishal Nath Mishra and Ors. v. State of U.P. and Anr.

Case brief

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Vishal Nath Mishra and Ors. v. State of U.P. and Anr.

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