Court No. - 49
Case :- APPLICATION U/S 482 No. - 15698 of 2021 Applicant :- Pappu @ Prem Prakash Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sikandar B. Kochar Counsel for Opposite Party :- Imran Ullah,Mohammad Khalid
Hon'ble Anil Kumar Ojha,J.
Heard learned counsel for the applicant, learned counsel for opposite party no. 2 and learned A.G.A. for the State and perused the record.
Learned counsel for the opposite party no. 2 said in the Court that he does not propose to file counter affidavit.
This application under Section 482 Cr.P.C. has been filed with a prayer to set aside the order dated 03.08.2021 & 06.08.2021 passed by Additional District Judge/Special Judge, Prevention of Corruption Act (U.P. SEB), Varanasi in S.T. No. 161A/2006 (State v. Pappu @ Prem Prakash & others) arising out of Case Crime No. 300 of 2005, P.S. Manduwadih, District Varanasi, pending in the court of Additional District Judge/Special Judge, Prevention of Corruption Act (U.P. SEB), Varanasi, with a further prayer to stay further proceeding in the aforesaid case.
Learned counsel for the applicant submitted that the applicant along with one co-accused Rajesh @ Langda were summoned under Section 319 Cr.P.C. vide order dated 10.08.2016 to face the trial. Total ten prosecution witnesses have been examined. PW1 Brinda @ Mala @ Nargis is the only witness of fact, her evidence started on 17.01.2020 and closed on 04.07.2020 due to her absence. After closure of evidence of PW1 Brinda @ Mala @ Nargis, other formal witnesses from PW2 to PW10 were examined by the trial court. Thereafter PW1 moved an application before the trial court on 23.02.2021, under Section 311 Cr.P.C. for being recalled which was allowed by the trial court vide order dated 26.02.2021. In pursuance of above recall order passed by learned trial court, cross-examination of PW1 Brinda @ Mala @ Nargis again started on 01.03.2021 and continued till 10.03.2021 after which the file of Sessions Trial was kept for statement under Section 313 Cr.P.C. Thereafter, another application under Section 311 Cr.P.C. for recalling PW1 Brinda @ Mala @ Nargis and PW10 Ct. Shiv Chand Yadav was moved by learned ADGC Criminal which was allowed by the trial court vide order dated 18.03.2021 whereby both PW1 Brinda @ Mala @ Nargis and PW10 Ct. Shiv Chand Yadav were again summoned and the trial court continued for evidence up to 19.03.2021. On 02.08.2021 itself learned trial court heard defence on 311 Cr.P.C. application on 22.01.2021 and rejected the same. Thereafter, application dated 05.08.2021 under Section 311 for recalling PW8 I.O. Santosh Kumar Singh on behalf of applicant was rejected by the trial court vide impugned order dated 06.08.2021. It was further submitted that PW1 Brinda @ Mala @ Nargis a witness of fact was recalled several times by the trial court and examined by prosecution and defence. Despite stating specific question to be asked from the PW6 and PW8, same has been rejected by the trial court. Both the impugned orders did not assign reasons as to whether statement under Section 161 Cr.P.C. of PW1 which has to be got proved by the evidence of PW8 by the defence are necessary for just decision of the case or not.
Learned counsel for the applicant argued that witnesses PW8 and PW10 have been summoned on the basis of application moved by learned ADGC, the same has been rejected when application moved by the applicant.
Per contra, learned A.G.A. and opposite party no. 2 vehemently opposed the submission and drew the attention of the Court towards the order dated 14.02.2020 passed by Hon'ble Apex Court in Writ Petition (Criminal) No. 15 of 2020 wherein Hon'ble Apex Court has directed the learned Additional Sessions Judge to record evidence on day to day basis. Learned counsel for the opposite party no. 2 further submitted that the applicant is not adversely affected due to non recall of PW8.
At page no. 30 of the paper book wherein PW8 Investigating Officer Santosh Kumar Singh has stated that he recorded statement of recovered girls, none of them told about alleged prostitution and rape by accused Rajesh @ Langda and applicant Prem Prakash.
Relevant portion of impugned order is quoted hereunder:
"इस प्रककार सकाकक्षी पक्षी०डब्ललू० -1 ववृन्दका उरर मकालका उरर नरगगिस कके दकारका प्रकाररनकापत्र मम उद्धत गदयके गियके पपैरका -9 कके खण्ड I, II, III, IV कके बयकाननों मम सभक्षी मम उसकके दकारका करन गकयके गियके गक - "ममुझके यकाद नहक्षी हपै"। जबगक पलूछके गियके प्रश्ननो कके सम्बन्ध मम स्ववंय वकागदनक्षी /पक्षीगड़ितका पक्षी०डब्ललू०-1 कके दकारका हक्षी स्पष्ट करन गकयका गियका गक उसके यकाद नहक्षी हपै। तब गकस प्रककार उसकके करननों सके गवरनोधकाभकास/लनोप कनो प्रमकागणित गकयका जका सकतका हपै , यह समझ कके परके हपै। पमुननः सकाकक्षी पक्षी०डब्ललू० -8 गववकेचक सन्तनोष कमु मकार ससवंह कके बयकाननों कके अवलनोकन सके गववकेचक दकारका सजरह कके ददौरकान स्पष्ट करन गकयके गियके हपै गक - " गदनकावंक 16/11/2005 कनो हक्षी मकेरके दकारका बरकामद लड़िगकयनों कके नकाम सलखके गियके रके। गकसक्षी भक्षी लड़िककी नके अपनके बयकान मम रकाजकेश उरर लगिड़िका दकारका प्रतकागडत करकके वकेश्यकाववृसत्ति करकानके , बलकात्ककार करनके और भकागिनके कके सम्बन्ध मम नहक्षी बतकायका रका।" .....
" यह सहक्षी हपै गक मकेरके दकारका गनष्पकागदत ककी गियक्षी सम्पलूणिर गववकेचनका मम कहक्षी भक्षी ममुललजम प्रकेम कमु मकार उरर पप्पलू उरर प्रकेम प्रककाश पमुत्र हनोरक्षी लकाल गनवकासक्षी गशवदकासपमुर मण्डमु वकाडक्षीह वकारकाणिसक्षी प्रककाश मम नहहीं आयका।"
It is pertinent to note here that the charge sheet has not been filed against the applicant Pappu @ Prem Prakash. The I.O. has specifically stated in relation to applicant Pappu @ Prem Prakash that the name of applicant did not come in light in investigation.
Learned counsel for the applicant further submitted that the evidence of I.O. was recorded after the evidence of PW1, hence, it is legal right of the applicant to get the I.O. recalled for cross-examination.
I do not agree with the above submission of the learned counsel for the applicant as in this application itself, it is admitted that the PW1 and PW8 were recalled and re-examined. Moreover, the I.O. has specifically stated with regard to applicant Pappu @ Prem Prakash that his name did not come in light during investigation.
In view of the above, statement of I.O., it cannot be held that the applicant will be adversely affected on account of non production of PW8 or PW10.
In view of the above discussion and keeping in view of the facts and circumstances particularly the direction of the Hon'ble Apex Court for recording the evidence in the case on day to day basis, the prayer for setting aside the order dated 03.08.2021 & 06.08.2021 is refused.
Accordingly, this application is dismissed.
Order Date :- 30.9.2021 VPS Digitally signed by ANIL KUMAR OJHA Date: 2021.10.01 14:46:28 IST Reason: Document Owner Location: High Court of Judicature at Allahabad