Court No. - 14
Case :- APPLICATION U/S 482 No. - 28071 of 2008 Applicant :- Dr. Om Prakash Sharma Opposite Party :- State Of U.P.And Another Counsel for Applicant :- C.S. Agnihotri,Anil Kumar Srivastava,Mohammad Khalid Counsel for Opposite Party :- Govt. Advocate,Mrs.Usha Srivastava,Vinod Kumar Srivastava
Hon'ble Abhai Kumar,J.
Learned counsel for the applicant as well as learned AGA for the State are present whereas none present on behalf of opposite party no. 2.
Heard learned counsel for the applicant as well as learned AGA for the State and perused the record.
This petition under Section 482 Cr.P.C. was preferred with the prayer to quash the order dated 12.4.2007 passed by Session Judge, Farrukhabad in criminal revision no. 306 of 2006 (Vinod Kumar Dubey Vs. State of U.P. and others). It was further prayed to stay the further proceedings in criminal case no. 6653 of 2006 (State of U.P. Vs. Dr. Om Prakash Sharma), under Section 420, 467, 468, 471 IPC, P.S. Kotwali, District Farrukhabad, pending in the court of Chief Judicial Magistrate, Farrukhabad.
Brief facts of the case are as follows:
As per petition, applicant was selected as Lecturer in Badri Vishal Degree College, Farrukhabad but he was not given appointment letter, therefore, he preferred a writ petition no. 23439 of 1998 which was disposed of with the direction to issue appointment letter within fortnight, by order dated 14.8.1995. When answering respondent did not comply with the order, a contempt petition no. 1789 of 1995 was preferred by the applicant, thereafter the committee of management and another staffs of the college with ulterior motive got registered an FIR against applicant under Section 420, 467, 468, 471 IPC. Chargesheet was submitted and trial was conducted under Section 420 IPC and applicant was acquitted vide order dated 14.11.2006. Against the order dated 14.11.2006, opposite party no. 2 who is not even the complainant or witness of the aforesaid case, filed a revision before the Session Judge, Farrukhabad and same was allowed without affording opportunity of hearing to the applicant. The Session Judge, Farrukhabad has wrongly and illegally allowed the revision and directed for retrial which is not permissible in the eyes of law. An application of the prosecution under Section 311 Cr.P.C. was already rejected on 13.10.2006 by the trial court and the revisional court could not have allowed and directed for retrial. The revisional court also failed to record the reason for retrial.
It is submission of the learned counsel that during trial before the court concerned opposite party no. 2 as well as prosecution were given several opportunities for producing their evidence and PW-1 Dwarika Prasad Mishra was already exempted by the trial court and the relevant papers were not got proved by the prosecution inspite of opportunities given in this regard.
The submission of the learned counsel that revision was filed by an incompetent person and trial court has also not given reason for allowing the application under Section 311 Cr.P.C. and for retrial.
The revisional court has categorically observed that trial court has indicated in its judgment that certain papers were filed from the side of complainant and they are not being proved. It is then observed by the revisional court that when any paper is taken upon record then opportunity for proving those papers ought to have been given to the complainant but application of complainant was dismissed by order dated 13.10.2006 thereby complainant was debarred from availing his legal right.
The order of the trial court for dismissing the application under Section 311 Cr.P.C. dated 13.10.2006 is relevant. It has been observed by the trial court that statement of PW-1 was completed and statement under Section 313 Cr.P.C. was taken on 10.10.2001 and written argument is also filed on 16.12.2001.
There is private counsel of the complainant and complainant is trying to linger the proceeding in the manner one way or the other. Application under Section 216 Cr.P.C. of the complainant for the amendment of charge was also dismissed and Hon'ble High Court has directed to get the matter decided within six months, if possible, complainant is trying to get the decision delayed.
It is further observation of the trial court that all the papers that are being filed are not being written by Dwarika Prasad. One letter is written by District Inspector of Schools, D.C. Kannuajia and another letter is written by Badri Vishal Dubey complainant who is already dead. and two letters are of Registrar of the Kanpur University. One letter is of Secretary of Home Department.
It is also observed by the trial court that none of the letter is written by PW-1 Dwarika Prasad and it is not claimed that Dwarika Prasad has seen those persons writing and he is accustomed of the writing of those persons.
If the order of the trial court is taken to be in proper perspective then it cannot be said that application for producing the PW-1 under Section 311 Cr.P.C. was rightly rejected as none of the papers were in the hand writing of PW-1 and he has also not claimed that her knows the hand writing of those person and has seen them reading and writing.
It is admitted fact that certain papers were taken on record by the court prior to moving of application under Section 311 Cr.P.C. and in the application under Section 311 Cr.P.C. that is being annexed alongwith supplementary affidavit as annexure 3, there is clearcut assertion that certain papers were filed on the last date and were taken on record by the court and for proving these papers, evidence of PW-1 is required.
If certain papers were taken upon record, then the trial court ought to have given opportunity to the prosecution for proving them and application under Section 311 Cr.P.C. ought not to have been dismissed outrightly. PW-1 was required to be summoned and opportunity to the prosecution should have been given to get the papers proved and it is only after evidence of PW-1 it could have been inferred whether those papers are being properly proved or whether any reliance can be placed upon those papers on the basis of statement of PW-1. Instead trial court rejected the application for summoning PW-1 expressing his views regarding the competency of PW-1 for proving the papers. It was not warranted and when papers were taken on record then certainly these papers were liable to be proved. It is the duty of the trial court to get all the evidence that is required for proper disposal of the case and in case certain papers were filed then it was also duty of the court to get them proved and for that opportunity was liable to be given to the prosecution.
In view of the above, if revisional court found order of the trial court dated 13.10.2006 not proper then it cannot be said that observation of the revisional court is perverse or illegal. Matter might have been old one and evidence might have been closed way back in the year 2001 but when papers are being taken upon record in the year 2006 then prosecution was entitled for further opportunity to produce evidence in this regard and accordingly there is no error in the order of revisional court.
So far the contention of the learned counsel is regarding the maintainability of the revision that is also not tenable. Revisional court can even take suo-motu cognizance of the matter. It is not important as to who is bringing the matter before the revisional court, Explanation 3 of Section 197 also indicates that any person can move application in this regard and it has not been mentioned in the explanation that it is to be filed by the complainant alone. Accordingly, if revision has been preferred by the opposite party no. 2, same cannot be said to be illegal and on that basis no relief can be granted.
In view of above, petition fails and is liable to be dismissed. However, it is directed that trial court concerned, will decide the matter expeditiously, preferably within six months from the date on which certified copy of this order is produced before it, after giving opportunity of hearing to the prosecution as well as the applicant as per law.
Order Date :- 27.4.2018 Ranjeet Sahu