Court No. - 53
Case :- APPLICATION U/S 482 No. - 3312 of 1999 Applicant :- Anupam Dubey Opposite Party :- State Of U.P. & Another Counsel for Applicant :- Smt. Usha Srivastava,V.K. Srivastava Counsel for Opposite Party :- Govt. Advocate
Hon'ble J.J. Munir,J.
Order on the Crl. Misc. Delay Condonation Application no.366674 of 2016 Heard Sri Vinod Kumar Srivastava, learned counsel for the applicant and Sri Indrajeet Singh Yadav, learned AGA along with Sri Avaneesh Kumar Shukla, appearing for the State.
This is an application under Section 5 of the Limitation Act seeking to condone the delay in filing the restoration application for recalling the order dated 28.07.2016, whereby an earlier belated restoration application made with the aid of delay condonation application was dismissed for non-prosecution. Consequently, the restoration application was dismissed as barred by time.
Perused the averments in support of the application seeking condonation of delay in the affidavit. Cause shown is sufficient. The application for condonation of delay being Criminal Misc. Delay Condonation Application No. 366674 of 2016 stands allowed.
The delay in filing the Crl. Misc. Restoration Application no.366675 of 2016 is condoned.
Order on the Crl. Misc. Restoration Application no.366675 of 2016 Heard learned counsel for the applicant in support of restoration application being Criminal Misc. Restoration Application No. 366675 of 2016 and also the perused the relevant averments in the affidavit in support of the restoration application.
Cause shown is sufficient.
The restoration application stands allowed.
The order dated 28.07.2016 dismissing the delay condonation application for non-prosecution and consequently the restoration application earlier made as barred by time is hereby recalled.
The Restoration Application No.34132 of 2012 together with the Criminal Misc. Delay Condonation Application No. 34131 of 2012 stand restored to their original file and number.
Order on the Crl. Misc. Delay Condonation Application no.34131 of 2012 Heard Sri Vinod Kumar Verma, learned counsel for the applicant in support of the delay condonation application and the learned AGA.
Cause shown in the affidavit in support of the delay condonation application is found to be sufficient. Delay Condonation Application is allowed.
The delay in filing the criminal misc. (restoration) application no.34132 of 2012 is condoned.
Order on the Crl. Misc. (Restoration) Application no.34132 of 2012 Heard Sri Vinod Kumar Verma, learned counsel for the applicant in support of the restoration application and the learned AGA.
Cause shown in the affidavit in support of the restoration application is found to be sufficient. Restoration application is allowed. The order dated 28.10.2010 dismissing the criminal misc. application no. 3312 of 1999 (under Section 482 Cr.P.C.) is recalled and the same stands restored to its original file and number.
Order on the Application u/s 482 no.3312 of 1999 Heard Sri Vinod Kumar Verma, learned counsel for the applicant and the learned AGA for the State.
This application has been filed seeking to quash the proceedings of Criminal Case No. 1533 of 1999, State vs. Anupam Dubey, under Section 302 IPC, P.S. Kotwali Fatehgarh, District Farrukhabad, pending in the court of the Chief Judicial Magistrate, Farrukhabad, arising out of Case Crime No. 333/1995, P.S. Kotwali Fatehgarh, District Farrukhabad.
The submission is that a first information report giving rise to Case Crime No. 333 of 1995, under Section 302 IPC was lodged on 26.07.1995 by one Mohd. Naseem to the effect that his brother Shamim was murdered by some unknown persons. After investigation the police submitted a charge sheet in the matter against Rajendra Kumar and in due course, the case was committed to the Sessions. After trial the sole accused Rajendra Kumar tried vide S.T. No. 749 of 1995, arising out of case crime no. 333 of 1995, P.S. Kotwali, District Fatehgarh was acquitted by the learned Special Judge (E.C. Act)/the Additional Sessions Judge, Farrukhabad vide judgment and order dated 30.06.1999. Later on, the police appeared to have investigated the matter further and on the basis of supplementary investigation submitted another charge sheet against four accused, to wit, Anupam Dubey, Kaushal Kishore, Laxmi Narayan and Shishu @ Bal Krishan The Magistrate took cognizance of the aforesaid charge sheet dated 14.07.1999 on 30.07.1999 and at this stage, it appears that the present application was filed challenging the charge sheet on the ground inter alia that once one of the accused who was chargesheeted has now been tried and acquitted, the witnesses and the evidence appearing against him cannot now be relied upon to proceed against the present applicant.
Learned AGA has opposed the motion to admit and allow this application.
Having heard learned counsel for the applicant, this Court finds that the evidence recorded in S.T. No. 749/95 cannot be read in another case as the same is not admissible in view of the provisions of 40 to 44 of the Evidence Act. The judgment in that sessions trial arising from the same crime neither relevant or admissible. It is only certain judgments that are judgments in rem under the aforesaid sections 40 to 44 of the Evidence Act that can be read in evidence in other proceedings. The evidence recorded in S.T. No. 749 of 1995 is absolutely irrelevant for the purposes of the case which the applicant now ask to be quashed. Even otherwise if the witnesses have deposed one way in the trial of Rajendra Kumar at one point of time it does not mean that they cannot speak the truth or a different version about the present accused. Assuming that the witnesses can come up with a different version from one put forth in the dock when they deposed in the earlier sessions trial, the best that can be made of the earlier evidence is to cross-examine the witnesses with reference to their previous statements and to contradict them, and, in the end, demolish their veracity as truthful witnesses. However, that does not mean that proceedings of the case can be quashed merely because one of the accused who was charge- sheeted in the case has been acquitted. There is no good ground to interfere in the present application under Section 482 Cr.P.C., particularly in a matter which relates to a heinous offence.
In the result, the application fails and is dismissed.
Interim order, if any, also stands vacated. The Magistrate concerned is directed to commit the case in accordance with law.
Order Date :- 27.7.2018 Imroz