Dismissed¶39

Kaniz Fatima v. State of U.P. and Another

Allahabad HC25 Apr 2025A482/1920/2025

Case brief

AI extract

What is this about?

Section 482 Cr.P.C. quashing application dismissed as withdrawn; trial-court rejection of application dated 02.12.2024 for being filed beyond time period in High Court order dated 16.10.2024 held not illegal, perverse or erroneous; S.T. No. 191 of 2017; Case Crime No. 453 of 2017; Section 302/34, 504 I.P.C.; Police Station Kotwali, District Mainpuri; applicant Kaniz Fatima; counsel Adeel Ahmad Khan; AGA; Allahabad High Court; Rajeev Misra, J.; Neutral Citation 2025:AHC:71318; order date 5.5.2025.

What did the court decide?

Application dismissed as withdrawn, with liberty to the applicant to approach the competent Court by filing an appropriate application. ¶39

Kaniz Fatima vs State of U.P. and Another — Murder and Culpable Homicide | Allahabad HC (2025)

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Neutral Citation No. - 2025:AHC:71318

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Court No. - 70

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Case :- APPLICATION U/S 482 No. - 1920 of 2025

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Applicant :- Kaniz Fatima Opposite Party :- State of U.P. and Another Counsel for Applicant :- Adeel Ahmad Khan Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Adeel Ahmad Khan, the learned counsel for applicant and the learned AGA for State-opposite party-1.

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Perused the record.

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Applicant- Kaniz Fatima, who is a charge-sheeted accused and is facing trial before Court below has approached this Court by means of present application under Section 482 Cr.P.C. with the following prayer:

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"It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow this application and quash the impugned order dated 03.01.2025 passed by the learned Additional District Judge/F.T.C. Court No.2, Mainpuri in S.T. No. 191 of 2017 (State Vs. Wasim @ Kanua and others) arising out of Case Crime No.453 of 2017, Under Section 302/34, 504 I.P.C., Police Station Kotwali, District Mainpuri pending in the court of the learned Additional District Judge/F.T.C. Court No.2, Mainpuri.

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It is further prayed that this Hon'ble Court may graciously be pleased to direct the Trial Court concerned to reconsider the application of the applicant dated 02.12.2024 forthwith well within time in compliance of order dated 16.10.2024 passed by this Hon'ble Court in S.T. No. 191 of 2017 (State Vs. Wasim @ Kanua and others) arising out of Case Crime No.453 of 2017, Under Section 302/34, 504 I.P.C., Police Station Kotwali, District Mainpuri pending in the court of the learned Additional District Judge/F.T.C. Court No.2, Mainpuri.

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And/or may pass such other and further orders which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case."

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It transpires from record that applicant had earlier approached this Court by means of an Application under Section 482 No.22006 of 2024 (Kaniz Fatima Vs. State of U.P. and Another) which was disposed of finally vide order dated 16.10.2024. For ready reference, the order dated 16.10.2024 passed by this Court is

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reproduced hereinbelow:

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"1. Heard learned counsel for the applicant, learned A.G.A. for the State and Sri Mohammd Nadeem, learned counsel for the opposite party no.2.

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2. Application under Section 482 Cr.P.C. has been filed challenging the order dated 21.6.2024 passed in Session Trial No. 191 of 2017 (State vs. Wasim @ Kunuwa and others) arising out of Case Crime No. 453 of 2017 under Sections 302, 504, 34 I.P.C., Police Station-Kotwali, DistrictMainpur, whereby application preferred by applicant under Section 233 Cr.P.C. for production of witnesses and certain documents has been rejected.

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3. Learned counsel for the applicant submits that the aforesaid application had been filed primarily for production of material witnesses and documents in support of defence taken by him to rebut the charges levelled against him. Learned counsel has adverted to Sections 233 and 311 Cr.P.C. to submit that the trial court had plenary pwoers for summoning such relevant material witnesses and documents in order to enable the applicant to put forth his best defence. It is further submitted that production of documents and material witnesses as sought, would not prejudice the case of the prosecution and therefore, there was no occasion for the trial court to have rejected the same only on account of the fact that it would entail delay in decision of the proceedings. Learned counsel has placed reliance on judgements rendered by coordinate Bench of this Court in Application U/S 482 No. 28214 of 2019 (Ram Charitra Singh vs. State of U.P. and Another) dated 30.7.2019 and Criminal Revision No. 794 of 2018 (Anupam Singh vs. State of U.P. Thru. Prin. Secy. Home And Anr.) dated 17.1.2024.

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4. Learned counsel appearing for opposite party no.2 has refuted the submissions advanced by learned counsel for the applicant with the statement that provisions of Section 233 and 311 Cr.P.C. do not operate in a vacuum and would come into play only in case the witnesses and documents required to be summoned are material for the purposes of defence of the accused. It is submitted that in the present facts and circumstances of the case, the applicant has not indicated as to how such witnesses and documents would be material for the applicant's defence. It is further submitted that judgements relied upon by learned counsel for the applicant are not material in the present facts and circumstances of the case.

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5. Learned A.G.A. also supports the submissions advanced by learned counsel for the opposite party no.2. Learned A.G.A further on the basis of written instructions dated 15.10.2024 has submitted that as per the instructions, the accused have also suffered injuries.

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6. Upon consideration of submissions advanced by learned counsel for the parties and perusal of material on record, particularly the application preferred by applicant under Section 233 Cr.P.C., it is evident that production of earlier Investigating Officer along with certain documents pertaining to such investigation and the injury report of applicant and

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accused was sought to be produced before the trial court.

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7. Although the application does not indicate any reason whatsoever for production of such documents and witnesses, learned counsel for the applicant submits that the presence of the earlier Investigating Officer was required in order to establish the discrepancies which occurred during the investigation process and would indicate contradiction in the prosecution story. It is submitted that similarly, the aspect of injury report of the applicant and co-accused is also required to indicate that both sides suffered injuries in the altercation which took place.

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8. By means of impugned order dated 21.6.2024, the trial court has rejected the aforesaid application primarily on the ground that the aforesaid application is being rejected on the ground that its only purpose is to delay the proceedings and even is otherwise not cogent for purposes of defence.

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9. Upon consideration of Sections 233 and 311 Cr.P.C., it is evident that trial court has plenary powers to summon any material witnesses or documents which it considers necessary for the purposes of corroboration of defence of accused. However, it is also relevant that such a power is required to be exercised only when such witnesses and documents are material for the purposes of defence already taken by the accused.

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10. In the present case, learned counsel for the opposite parties have submitted that no such defence has been taken by the applicant at the stage of Section 313 Cr.P.C. and since, particularly no such defence of injuries being suffered by the accused has been adverted to or advanced by the applicant, such a document as injury report of the accused cannot be read into isolation without any such defence being taken.

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11. The judgements cited by learned counsel for the applicant, in the considered opinion of this Court, are not applicable in the present facts and circumstances of the case since in both the judgements, the aspect of refusal by the trial court to summon the witnesses was only when such witnesses were named as prosecution witnesses whereas in the present case the witnesses sought to be summoned by the applicant are not indicated as prosecution witnesses.

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12. So far as application for summoning of the earlier Investigating Officer and his investigation memo is concerned, this Court does not find any occasion to take a divergent view with that taken by the trial court since no cogent reason whatsoever has been indicated for production of such documents and witnesses.

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13. However, so far as the case of production of injury report pertaining to the accused is concerned, the same may be a cogent factor for establishing the genesis of the incident and would, in the considered opinion of this Court, be a relevant aspect which may be required to be considered by trial court but only in case such a defence has already been taken by the accused.

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14. Since the statement of accused recorded under Section 313 Cr.P.C. are

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not on record, this Court at this juncture, refrains from issuing any positive directions to that aspect.

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15. With regard to the aforesaid aspect of production of injury report of the accused, liberty is granted to applicant to file a fresh application for production of such documents and witnesses within a period of two weeks from today along with a certified copy of this order. In case such an application is filed by the applicant within the stipulated period, the trial court may consider the aforesaid aspect but only in case such a defence has already been taken by the accused in their statements.

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16. To the aforesaid extent only, the impugned order dated 21.6.2024 is hereby quashed with liberty so granted.

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17. The application succeeds and is allowed partly to the aforesaid extent."

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Subsequent to above order dated 16.10.2024, applicant filed an application dated 02.12.2024 before court below to accept the order passed by High Court on the record. The said application was also supported by an affidavit.

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Court below by means of order impugned dated 03.01.2025 rejected the aforesaid application dated 02.12.2024 on the ground that the same has been filed beyond the time period mentioned in the order dated 16.10.2024.

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The Court pointed out aforesaid fact to the learned counsel for applicant. The Court further raised a pointed query as to why an application for extension of time was not filed in the application in which the order dated 16.10.2024 was passed, learned counsel for applicant could not submit any specific reply.

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In view of above, the reasoning assigned by court below in rejecting the application dated 02.12.2024 filed by applicant before court below cannot be said to be illegal, perverse or erroneous.

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At this juncture, the learned counsel for applicant submits that he be permitted to withdraw the present application with liberty to approach the competent Court by filing appropriate application.

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Learned AGA representing State-opposite party-1 has no objection to the prayer made by the learned counsel for applicant.

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In view of above, this application is accordingly dismissed as withdrawn with aforesaid liberty.

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Order Date :- 5.5.2025/R.S. Tiwari

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Digitally signed by :- RAVI SHANKAR TIWARI High Court of Judicature at Allahabad

Kaniz Fatima v. State of U.P. and Another

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Kaniz Fatima v. State of U.P. and Another

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