Manoj Kumar Sharma vs State of U.P. through Principal Secretary Home Government Of U.P. At Lucknow and 2 others

Present application under Section 482 of Cr.P.C. has been filed to quash the order dated 21.02.2024 passed by Sessions Judge, Firozabad in Criminal Revision No. 264 of 2023 (Manoj Kumar Sharma vs. State of U.P.), whereby the revisional court affired the order dated 25.08.2023 passed by Chief Judicial Magistrate, Firozabad in Criminal Case No. 1139 of 2006 (State vs. Ramnath and others), arising out NCR No. 105 of 2005, under Sections 323, 427, 504, 506 IPC, P.S. Firozabad South, District Firozabad, whereby learned Magistrate imposed a cost of Rs. 2,000/- on prosecution witness.

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Learned counsel for the applicant submits that the impugned orders have been passed without considering the position of law. It is further submitted that the cost has been imposed by learned Magistrate is illegal and perverse. The penalty imposed is against the fair trial.

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Learned A.G.A. has denied the actual facts of the case relevant at this stage.

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In Dr. Rajesh Talwar and another Vs. C.B.I. and another, (2014)

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16 SCC 628 , the Supreme Court considered the issue of fair trial observing in Para 10, which is as under:-

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"10. This Court in Selvi J. Jayalalithaa & Ors. v. State of Karnataka & Ors. (Writ Petition (Crl.) No.154 of 2013) decided on 30.9.2013, after referring to its earlier judgments in Triveniben Vs. State of Gujarat, AIR 1989 SC 1335; Zahira Habibullah Sheikh and Another Vs. State of Gujarat and others, AIR 2006 SC 1367; Capt. Amarinder Singh Vs. Prakash Singh Badal & Ors., (2009) 6 SCC 260; Mohd. Hussain @ Julfikar Ali v. State (Govt. of NCT of Delhi), AIR 2012 SC 750; and Natasha Singh Vs. CBI (State), (2013) 5 SCC 741, dealt with the issue of fair trial observing:

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Fair trial is the main object of criminal procedure and such fairness should not be hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society. Thus, fair trial must be accorded to every accused in the spirit of right to life and personal liberty and the accused must get a free and fair, just and reasonable trial on the charge imputed in a criminal case. Any breach or violation of public rights and duties adversely affects the community as a whole and it becomes harmful to the society in general. In all circumstances, the courts have a duty to maintain public confidence in the administration of justice and such duty is to vindicate and uphold the 'majesty of the law' and the courts cannot turn a blind eye to vexatious or oppressive conduct that occurs in relation to criminal proceedings.

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Denial of a fair trial is as much injustice to the accused as is to the victim and the society. It necessarily requires a trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. Since the object of the trial is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities and must be conducted under such rules as will protect the innocent and punish the guilty. Justice should not only be done but should be seem to have been done. Therefore, free and fair trial is a sine qua non of Article 21 of the Constitution. Right to get a fair trial is not only a basic fundamental right but a human right also. Therefore, any hindrance in a fair trial could be violative of Article 14 of the Constitution.

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Article 12 of the Universal Declaration of Human Rights provides for the right to a fair trial what is enshrined in Article 21 of our Constitution. Therefore, fair trial is the heart of criminal jurisprudence and, in a way, an important facet of a democratic

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polity and is governed by rule of law. Denial of fair trial is crucifixion of human rights."

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In the case of Natasha Singh Vs. C.B.I. (State), (2013) 5 SCC 741 , the Supreme Court dealt with the scope of discretionary power of Section 311, Cr.P.C. after referring the judgment of P. Sanjeeva Rao Vs. State of A.P., AIR 2012 SC 2242, which is as under:-

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"Grant of fairest opportunity to the accused to prove his innocence was the object of every fair trial, observed this Court in Hoffman Andreas v. Inspector of Customs, Amritsar, (2000) 10 SCC 430. The following passage is in this regard apposite:

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`In such circumstances, if the new Counsel thought to have the material witnesses further examined, the Court could adopt latitude and a liberal view in the interest of justice, particularly when the Court has unbridled powers in the matter as enshrined in Section 311 of the Code. After all the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible.'

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We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined in chief about an incident that is nearly seven years old….. we are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to cross-examine the witnesses, we would prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself."

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In the present case, opportunity of evidence to the applicant has been closed. On 25.08.2023, the trial court provided last opportunity to the applicant for evidence on the penalty of Rs. 2,000/-.

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In view of the the facts and circumstances of the case and keeping in mind the law laid down by Apex Court in the case of Dr. Rajesh

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Talwar (supra) and Natasha Singh (supra) , without going through the merit of the case, I am of the considered view that the order dated 21.02.2024 is liable to be set aside and is, accordingly, set aside with direction to trial court concerned to examine the witness on the next date fixed. As undertaken by the learned counsel for the applicant, the witness shall appear before the trial court on the next date fixed. The present application u/s 482 Cr.P.C. is accordingly, allowed.

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(Sanjay Kumar Pachori, J.)

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Order Date :- 22.01.2025 MAA/-

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Digitally signed by :- MOHAMMAD AZAD ANSARI High Court of Judicature at Allahabad

Manoj Kumar Sharma v. State of U.P. through Principal Secretary Home Government Of U.P. At Lucknow and 2 others

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Manoj Kumar Sharma v. State of U.P. through Principal Secretary Home Government Of U.P. At Lucknow and 2 others

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