Partly allowed

Kalicharan Alias Baba v. State of U.P. and Another

Allahabad HC14 Oct 2022A482/304/2020

Case brief

AI extract

What is this about?

The High Court partly allowed an application under Section 482 Cr.P.C. quashing an order summoning the applicant. The trial court erred by relying on a second witness's evidence despite a prior rejected application regarding that evidence and by failing to adhere to the limitation on evidence under Section 319 Cr.P.C. stated in Hardeep Singh.

What did the court decide?

Impugned order dated 3.9.2019 set-aside. Matter remanded to trial court to consider the Section 319 Cr.P.C. application afresh.

Kalicharan Alias Baba Vs State of U.P. and Another — Quashing and FIR | Allahabad HC (2022)

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Judgment Reserved on 27.9.2022

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Delivered on 14.10.2022

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Court No. - 84

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Case :- APPLICATION U/S 482 No. - 304 of 2020

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Applicant :- Kalicharan Alias Baba

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Opposite Party :- State of U.P. and Another

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Counsel for Applicant :- Rajiv Lochan Shukla,Ashish Kumar Counsel for Opposite Party :- G.A.,Kripa Shanker Yadav,Rahul Mehrotra

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Hon'ble Saurabh Shyam Shamshery,J.

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Heard Shri Rajiv Lochan Shukla, learned counsel for the applicant and Shri Kripa Shanker Yadav, learned counsel for the opposite party no.2.

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By means of this present application, the applicant has prayed for quashing of order dated 3.9.2019 passed by Additional District & Sessions Judge 4^th Kasganj, in Sessions Trial No.356 of 2011, [State Vs. Trimal alias Bahra & others] arising out of Case Crime No.42 of 2011, under Section 302 of Indian Penal Code by which an application under Section 319 Cr.P.C. filed by complainant has been allowed and he has been summoned for trial.

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This Court by a detailed order dated 31.1.2020, granted interim relief to the applicant.

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Learned counsel for the applicant has argued at length trying to convince the court that evidence of alleged eye witness (P.W.2) before the court, wherein name of applicant was disclosed to be

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main assailant who shot dead his father was a new case from his statement recorded under Section 161 Cr.P.C., therefore ignoring said statement, only on the basis of statement of said witness during trial, he cannot be summoned. However, as held in Sartaj Singh Vs. State of Haryana & Anr , (2021) 5 SCC 337, wherein the law declared by the Constitution Bench in the case of Hardeep Singh & Ors. Vs. State of Punjab & Ors, 2014 (3) SCC 92, was followed “that apart from the evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commenced, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the powers under Section 319 Cr.P.C.. The ”evidence” is thus, limited to the evidence recorded during trial”, therefore, while considering the application under Section 319 Cr.P.C., court concerned has to scrutinize the evidence recorded by the witness during trial and not the statement of the same witness recorded under Section 161 Cr.P.C., therefore, the argument of learned counsel for the applicant is rejected.

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However, there is a substance in the second argument of learned counsel for the applicant that after the statement of P.W.1, Kale, was recorded before the trial court, an application was moved under Section 319 Cr.P.C. to summon the applicant as the said witness has named the applicant as main assailant, but said application was rejected by the trial court by an order dated 1.5.2017 on the ground that P.W.1 was not an eye witness and the eye witness was only P.W.2, Rihan and other witness Sharif also reached the spot who were yet to be examined at that time and the said order was challenged by the complainant before this Court

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by way of filing an application under Section 482 Cr.P.C. No.27833 of 2017 which is still pending .

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Meanwhile, evidence of P.W.2 Rihan, alleged eye witness was recorded wherein he specifically named the applicant to be main assailant who shot dead his father and at this stage second application was filed under Section 319 Cr.P.C. which was considered and by impugned order, the applicant was summoned, but trial court has not taken note of the order dated 1.5.2017, whereby first application filed under section 319 Cr.P.C. was already rejected on ground that P.W.1, Kale was not an eye witness. However, the trial court not only considered the evidence of P.W. 2 Rihan, but also took note of evidence of P.W.1, Kale and came to the conclusion that the prosecution witnesses have examined two witnesses and both the said witnesses have stated that the applicant shot dead his father as such the trial court has committed error while considering second application under Section 319 Cr.P.C. Consideration ought to have been given to testimony of only P.W.2 only for the purpose of said application and not evidence of PW-1 as already earlier application was rejected.

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Second argument of learned counsel for applicant was vehemently opposed by learned counsel for the opposite party that even evidence of P.W.2, Rihan was sufficient to summon the applicant ignoring the evidence of P.W.1, Kale.

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The trial court has committed an error that he has completely ignored the first application filed under Section 319 Cr.P.C. as well as its outcome and secondly it has taken into consideration, the evidence of P.W.1 also while considering the second application

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filed under Section 319 Cr.P.C. without taking into that it was already rejected, therefore, for the said purpose and the trial court ought to have considered only the evidence of P.W.2, Rihan while, considering second application, except for corroboration if any from evidence of PW-1 therefore, the impugned order dated 3.9.2019 is rendered erroneous and accordingly set-aside. Matter is remanded back to the trial court to consider the application filed by O.P. No.2 on 6.7.2018 under Section 319 Cr.P.C. afresh and pass a fresh order taking note of the judgment passed in Hardeep Singh and Sartaj Singh (supra) within a period of four weeks from the date a certified copy of the order is filed in accordance with law.

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With the aforesaid direction, this application is partly allowed.

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Order Date:14.10.2022

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Digitally signed by SANDEEP BHATTACHARYA Date: 2022.10.14 14:40:41 IST Reason: Location: High Court of Judicature at Allahabad

Kalicharan Alias Baba v. State of U.P. and Another

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Kalicharan Alias Baba v. State of U.P. and Another

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