Allowed

Tasaubbar @ Chhangur v. State of U.P. and Another

Allahabad HC5 Jan 2025A482/32382/2024

Case brief

AI extract

What is this about?

Charge-sheeted accused sought quashing of order rejecting recall of prosecution witnesses after a fresh Section 366 IPC charge was framed mid-trial. The High Court held that fresh evidence must be recorded on a fresh charge under Sections 216-217 CrPC, quashed the impugned order, allowed the application and directed recall of the prosecutrix for further cross-examination within one month.

What did the court decide?

Impugned order dated 27.08.2024 quashed; application allowed; trial court directed to recall first informant/prosecutrix under Section 311 CrPC for further cross-examination within one month.

Tasaubbar @ Chhangur Vs State of U.P. and Another — Quashing and FIR | Allahabad HC (2025)

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Neutral Citation No. - 2025:AHC:5976

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Court No. - 71

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Case :- APPLICATION U/S 482 No. - 32382 of 2024

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Applicant :- Tasaubbar @ Chhangur Opposite Party :- State of U.P. and Another Counsel for Applicant :- Jitendra Singh Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Jitendra Singh, the learned counsel for applicant and the learned A.G.A. for State opposite party 1.

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Perused the record.

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Applicant-Tasaubbar @ Chhangur, who is charge sheeted accused 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 kindly be pleased to allow this application for quashing the order dated 27.8.2024 passed by the Additional Sessions Judge/F.T.C.1, Mau and direct the learned trial court for summoning the witnesses again for Trail No.50 of 2012 (State Vs. Bhagmati & others) arising out of Case Crime No. 272 of 2011, U/S 366, 366, 376 I.P.C., Police Station Kopaganj, District Mau, pending in the court of Additional Sessions Judge/F.T.C.1, Mau.

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It is further prayed that this Hon'ble Court may graciously be pleased to stay the effect and operation of the order dated 27.08.2024 passed by the Additional Sessions Judge/F.T.C.1, Mau and direct the learned trial court for summoning the witnesses again for trial of Section 366 I.P.C. in Session Trial No.50 of 2012 (State Vs. Bhagmati & others) arising out of Case Crime No. 272 of 2011, U/S 366, 366, 376 I.P.C., Police Station Kopaganj, District Mau, pending in the court of Additional Sessions Judge/F.T.C.1, Mau during the pendency of the present application, otherwise applicant shall suffer irreparable loss and injury."

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Present application came up for admission on 28.11.2024 and this Court passed the following order :-

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"1. Heard learned counsel for applicant and learned Additional Government Advocate appearing for opposite party no.1State.

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2. Issue notice to opposite party no.2 through Chief Judicial Magistrate concerned.

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3. Application under Section 482 Cr.P.C. has been filed challenging order dated 27.08.2024 passed in Session Trial No.50 of 2012 (State versus Bhagmati & Ors.) arising out of Case Crime No.272 of 2011, under Sections 363, 366, 376 IPC, Police Station Kopaganj, District Mau whereby application for recall of witnesses filed by the applicant has been rejected.

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4. Learned counsel for applicant submits that initially charge-sheet was filed under Sections 363, 366 and 376 IPC whereafter charges were framed on 17.04.2012 only under Sections 366 and 376 IPC leaving out Section 366. It is submitted that cross-examination was also conducted on behalf of applicant only on the aforesaid two sections under which charges were framed but subsequently fresh charge was framed under Section 366 IPC on 11.07.2024 whereafter the aforesaid application had been given as per which the witnesses were required to be recorded in terms of Section 217 Cr.P.C. but the application has been rejected only on the ground that in the crossexamination conducted earlier, the questions asked from the witnesses also pertained to Section 366 IPC.

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5. It is thus submitted that trial court while passing impugned order has misapplied specific provision of Section 217 Cr.P.C. and has ignored the right of accused for recall of witnesses once fresh charge has been framed during the course of trial.

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6. Prima facie submissions advanced by learned counsel for applicant have force and require consideration for which time is granted to opposite parties to file their counter affidavit.

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7. List this case on 06.01.2025, as fresh along with service report.

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8. Till next date of listing, proceedings in Session Trial No.50 of 2012 (State versus Bhagmati & Ors.) arising out of Case Crime No.272 of 2011, under Sections 363, 366, 376 IPC, Police Station Kopaganj, District Mau shall remain stayed."

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Pursuant to above order dated 28.11.2024 notice was issued to opposite party no.2. Office has submitted its report dated 3.1.2025 stating therein that the notice issued to opposite party 2 has been served upon him. However, in spite of service of notice neither any counter affidavit has been filed by first informant/opposite party no.2 nor any one has put in appearance on his behalf to oppose this application, even in revised call.

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Learned counsel for applicant has reiterated the same contentions as noted in paragraph no. 4 of the interim order dated 28.11.2024. With reference to above he submits that once fresh charge under Section 366 I.P.C. was framed against the applicant then court below was under a legal obligation to recall the prosecution witnesses for deposition in respect of charge framed under Section 366 I.P.C. However, the court below has not followed the said procedure. An application was filed on behalf of

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the applicant before the court below praying therein that he be allowed to cross examin the prosecutrix in respect of the charge under Section 366 I.P.C. As such P.W.-1 recalled but the same was rejected by court below on the ground that on previous cross examination of the prosecutrix question pertaining to an offence under Section 366 I.P.C. were also asked.

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Be that as it may, the procedure adopted by court below is contrary to the procedure contemplated under the Code of Criminal Procedure. Once fresh charge has been framed against accused then fresh evidence is required to be recorded in order to establish the subsequent charge. Reference in this regard be made to the provision contained in Sections 216 and 217 Cr.P.C.

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In view of above, the order impugned cannot be sustained and is liable to be quashed. It is accordingly quashed.

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The present applicant shall stands allowed .

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The court below shall now recall the first informant/prosecutrix in exercise of jurisdiction under Section 311 I.P.C. for her further cross examination in respect of the new charge framed under Section 366 I.P.C. against the applicant.

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The necessary exercise shall be undertaken by court below within a period of one month from the date of production of a certified copy of this order.

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Order Date :- 6.1.2025 Md Faisal

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Digitally signed by :- MOHD FAISAL High Court of Judicature at Allahabad

Tasaubbar @ Chhangur v. State of U.P. and Another

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Tasaubbar @ Chhangur v. State of U.P. and Another

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