Nagendra Kumar @ Nagendra Vs State of U.P. Thru. Prin. Secy. Home, Lko. and Others

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Neutral Citation No. - 2024:AHC-LKO:65460

Court No. - 13

Case :- APPLICATION U/S 482 No. - 8504 of 2024 Applicant :- Nagendra Kumar @ Nagendra Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, Lko. And Others Counsel for Applicant :- Ajeet Pratap Singh Counsel for Opposite Party :- G.A.

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Hon'ble Saurabh Lavania,J.

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Heard.

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The present application filed seeking following main relief:-

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"Wherefore, it is most respectfully prayed that in the interest of justice, this Hon'ble court may kindly be pleased:-

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(A) to quash the order dated: 02.09.2024 as contained in ANNEXURE No.1 passed by the court of learned Special Judge, POCSO Act/Additional District and Sessions Judge, Lucknow in S.T. No. 614/2018, State versus Nagendra, Case Crime no. 473/2017, under Sec. 376 I.P.C. and Sec. 3/4 Pocso Act, P.S. P.G.I., Lucknow and to direct the learned court below to summon the Chief Medical Officer, Lucknow alongwith Age determination Report of the Victim as referred in her Supplementary medico legal report."

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By means of the present application, the applicant has approached this Court, challenging the order dated 02.09.2024 passed by Special Judge, POCSO Act/ Additional District and Sessions Judge (in short 'trial court'), Lucknow in S.T. No. 614/2018 (State Versus Nagendra), whereby the application preferred by the accused/applicant under Section 311 Cr.P.C. has been rejected.

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Brief fact of the case are to the effect that FIR No. 0473 of 2017 under Section 376 IPC and 3/4 POCSO ACT 2012 (in short 'Act of 2012') was lodged on 27.07.2023 against Sangeeta, Madhu, Usha and Nagendra and thereafter the charge-sheet was filed against the accused applicant. Thereafter, the matter was committed court of Sessions, which was registered as S.T. No. 614 of 2018.

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It would be apt to indicate that according to the case of prosecution the victim at the time of alleged incident was aged about 16 years and the victim during investigation supported the basis story of the prosecution indicated in the FIR.

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It would also be relevant to indicate that no opinion regarding age of victim was given by the doctor as appears from the statement of doctor concerned, who appeared before the trial court and has already been examined as P.W.3.

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On the issue of age of victim, the prosecution placed on record the 'Transfer Certificate' (T.C.) of Class Vth and to prove the same before the trial court, Assistant Teacher namely Manish Srivastava of Primary School, Ghogan Khera, Sarojani Nagar, Lucknow (in short 'Primary School'), was produced before the trial court on 10.04.2023 and he was duly examined by the prosecution and thereafter duly cross examined by the defence as appears from Annexure No.6 to the present application.

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After the aforesaid i.e. about more than one year, the defence preferred an application dated 02.09.2024 under

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Section 311 Cr.P.C. read with Section 348 BNSS, 2023, with a prayer to summon the Chief Medical Officer, Lucknow alongwith age determination report of the victim and the same has been rejected by the trial court vide order dated 02.09.2024. The order dated 02.09.2024, on reproduction reads as under:-

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"okn is'k gqvkA

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vfHk;qDRk dh vksj ls gkftjh ekQh izkFkZuki= izLRkqr fd;k x;kA i=koyh vkt cgl gsrq fu;r gSA i=koyh esa ,d izkFkZuki= vUrxZRk /kkjk&311 na0iz0la0 bl vk'k; ls fn;k x;k gS fd ihfM+rk dh ,Dl&js ijh{k.k djk;k x;k Fkk] ijUrq vk;q ds lEca/k esa dksbZ vk[;k ugha nh x;h gSA vk;q fu/kkZ egRoiw.kZ gS o tks lk{; izLrqr fd;s x;s gSa og ekuuh; mPpre U;k;ky; dh fof/k O;oLFkk tks fd izkFkZuki= esa ntZ gS ds vuqlkj ugha gSA

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izkFkZuki= dk ?kksj fojks/k vfHk;kstu dh vksj ls fd;k x;k gSA

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lquk ,oa i=koyh dk ifj'khyu fd;kA

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i=koyh ds ifj'khyu ls LIk"V gS fd ekeys esa cpko i{k lekIr gks pqdk gSA i=koyh cgl gsrq fu;r gSA i=koyh esa ekeys esa vfHk;kstu }kjk vk;q dks lkfcr djus ds fy, ih0MCYkw0&8 lgk;d v/;kid izkFkfed fo|ky; ?kks?ku[ksM+k ljkstuh uxj dks izLrqr fd;k x;k gS vkSj ftlds lanHkZ esa cpko i{k dk rdZ gS fd og mfpr vk;q fu/kkZj.k ugha gSA ;fn vfHk;kstu ds }kjk dksbZ deh dh x;h gS rks mDRk dk rdZ cgl ds Lrj ij mBk;k tk ldrk gS vkSj ;fn cgl ds i'pkr ;g ik;k tkrk gSA fd vk;q ds lanHkZ esa dksbZ vko';d gS rks mijksDr ij U;k;ky; mfpr vkns'k ikfjr dj ldrk gS orZeku esa cgl ds Lrj ij bl izdkj dk izkFkZuki= iks"k.kh; ugha gSA

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rn~uqlkj [kkfjt fd;k tkrk gSA okLrs cgl fnukad 10-9-2024 dks is'k gksA"

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Learned counsel for the applicant impeaching the order dated 02.09.2024 passed by the trial court says that as per settled principle of law the application ought to have been allowed by the trial Court and the order impugned is against the principle settled in this regard as also the observations made by the Hon'ble Apex Court in regard to expression 'Fair Trial'. As such, interference of this Court is required in the matter.

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Learned AGA opposed the present application. He stated that the application under Section 311 Cr.P.C. was moved with sole intention to delay the trial, which is impermissible and in

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these circumstances of the case, the application has rightly been rejected by the trial Court.

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Considered the submissions advanced by the learned counsel for the parties and perused the record. 12. Considered the aforesaid facts and the observations made by the trial Court in the order dated 02.09.2024 and the principles related to recall of witness under Section 311 Cr.P.C. settled by the Hon'ble Apex Court in the case(s) of Mohd. Khalid Versus State of West Bengal (2002) 7 SCC 334, Hanuman Prasad (Supra), Natasha Singh vs. CBI, (2013) 5 SCC 741 : (2013) 4 SCC (Cri) 828 : 2013 SCC OnLine SC 444, State of Haryana vs. Ram Mehar and others; (2016) 8 SCC 762, Swapan Kumar Chatterjee vs. Central Bureau of Investigation, (2019) 14 SCC 328; Varsha Garg vs. State of Madhya Pradesh and Others; 2022 SCC OnLine SC 986 and as also by this Court in Application under Section 482 Cr.P.C. No. 274 of 2022 (Ram Nayak Singh vs. State of U.P. & Another).

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It is well settled by catena of decisions by the Hon'ble Apex Court that the power under Section 311 Cr.P.C. must be exercised with the care, caution and circumspection and only for strong and valid reasons. The recall of a witness already examined should not be a matter of course and discretion given to the court in this regard has to be exercised judicially to prevent failure of justice. The object of the provision as a whole is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society.

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The Court is fully conscious of the position that after all the trial is basically for the prisoners/accused and the Court should afford an opportunity to them in the fairest manner possible. At the same time, the Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right. Recalling of witnesses has to be applied on the basis of judicially established and accepted principles.

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In the facts of the case it would be apt to refer the observations made in the judgment(s) passed in the case of Mohd. Khalid (Supra) and Ram Mehar (Supra).

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In the case of Mohd. Khalid (Supra) , the Hon'ble Apex Court observed as under:-

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"Before parting with the case, we may point out that the Designated Court deferred the cross-examination of the witnesses for a long time. That is a feature which is being noticed in many cases. Unnecessary adjournments give a scope for a grievance that the accused persons get a time to get over the witnesses. Whatever be the truth in this allegation, the fact remains that such adjournments lack the spirit of Section 309 of the Code. When a witness is available and his examination-in- chief is over, unless compelling reasons arc there, the Trial Court should not adjourn the matter on the mere asking. These aspects were highlighted by this Court in State of U.P. v. Shambhu Nath Singh and others (2001) 4 SCC 667 and N.G. Dastane v. Shrikant Shivde (2001) 6 SCC 135. In the case of State of U.P. v. Shambhu Nath Singh and others (2001) 4 SCC 667, this Court deprecated the practice of Courts adjourning cases without examination

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of witnesses when they are in attendance with the following observations:-

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"9. We make it abundantly clear that if a witness is present in Court he must be examined on that day. The Court must know that most of the witnesses could attend the Court only at heavy cost to them, after keeping aside their own avocation. Certainly they incur suffering and loss of income. The meagre amount of bhatta (allowance) which a witness may be paid by the Court is generally a poor solace for the financial loss incurred by him. It is a said plight in the Trial Courts that witnesses who are called through summons or other processes stand at a doorstep from morning till evening only to be told at the end of the day that the case is adjourned to another day. This primitive practice must be reformed by every one provided the presiding officer concerned has a commitment towards duty. No sadistic pleasure, in seeing how other persons summoned by him as witnesses are standard on account of the dimension of his judicial powers, can be a persuading factor for granting such adjournments lavishly, that too in a casual manner."

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In the case of Ram Mehar (Supra) the Hon'ble Apex Court observed as under:-

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"23. In Bablu Kumar and others v. State of Bihar and another, (2015) 8 SCC 787 the Court referred to the authorities in Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC, Rattiram and others v. State of Madhya Pradesh (2012) 4 SCC 516, J. Jayalalithaa and others v. State of Karnataka and others (2014) 2 SCC 401, State of Karnataka v. K. Yarappa Reddy (1999) 8 SCC 715 and other decisions and came to hold that keeping in view the concept of fair trial, the obligation of the prosecution, the interest of the community and the duty of the court, it can irrefragably be stated that the court cannot be a silent spectator or a mute observer when it presides over a trial. It is the duty of the court to see that neither the prosecution nor the accused play truancy with the criminal trial or corrode the sanctity of the proceeding. They cannot expropriate

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or hijack the community interest by conducting themselves in such a manner as a consequence of which the trial becomes a farcical one. It has been further stated that the law does not countenance a "mock trial". It is a serious concern of society. Every member of the collective has an inherent interest in such a trial. No one can be allowed to create a dent in the same. The court is duty-bound to see that neither the prosecution nor the defence takes unnecessary adjournments and take the trial under their control. We may note with profit though the context was different, yet the message is writ large. The message is - all kinds of individual notions of fair trial have no room"."

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"38. At this juncture, we think it apt to state that the exercise of power under Section 311 Cr.P.C. can be sought to be invoked either by the prosecution or by the accused persons or by the Court itself. The High Court has been moved by the ground that the accused persons are in the custody and the concept of speedy trial is not nullified and no prejudice is caused, and, therefore, the principle of magnanimity should apply. Suffice it to say, a criminal trial does not singularly centres around the accused. In it there is involvement of the prosecution, the victim and the victim represents the collective. The cry of the collective may not be uttered in decibels which is physically audible in the court premises, but the Court has to remain sensitive to such silent cries and the agonies, for the society seeks justice. Therefore, a balance has to be struck. We have already explained the use of the words "magnanimous approach" and how it should be understood. Regard being had to the concept of balance, and weighing the factual score on the scale of balance, we are of the convinced opinion that the High Court has fallen into absolute error in axing the order passed by the learned trial Judge. If we allow ourselves to say, when the concept of fair trial is limitlessly stretched, having no boundaries, the orders like the present one may fall in the arena of sanctuary of errors. Hence, we reiterate the necessity of doctrine of balance".

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Having considered the aforesaid, this Court finds that application was moved with sole intention to delay the trial and the process adopted by the defence is nothing, but an abuse of process of law. It is for the following reason(s):(i) S.T. No. 614 of 2018 (State Versus Nagendra) arising out of Case Crime No. 473 of 2017, is at the stage of final arguments. (ii) Documents pertaining to age is on record as Exhibit No.11. To prove this document, Manish Srivastava Assistant Teacher of Primary School appeared befoer the trial court and he was duly cross examined by the defence.

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(iii) It is a settled principle of law that prosecution has to prove its case beyond doubt. (iv) Exhibit document i.e. Exhibit-Ka 11, would be dealt with by the trial court as per Law including the judgment passed by the Hon'ble Supreme Court in the case of P.Yuvaprakash Versus State reported in (2023) 10 S.C.R. 478.

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(v) In the order impugned, the trial court has already observed that if need arises, then appropriate order would be passed for determining the age.

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For the aforesaid, this Court does not find any illegality in the impugned order dated 02.09.2024. The instant application is hereby dismissed. Cost made easy.

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Order Date :- 21.09.2024

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Jyoti/-

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Digitally signed by :- JYOTI RAJWANI High Court of Judicature at Allahabad, Lucknow Bench

Nagendra Kumar @ Nagendra v. State of U.P. Thru. Prin. Secy. Home, Lko. and Others

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Nagendra Kumar @ Nagendra v. State of U.P. Thru. Prin. Secy. Home, Lko. and Others

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