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IN THE HIGH COURT OF ALLAHABAD
AJIT SINGH, J.
Smt. Rekha – Appellant
Versus
State of U.P. and Another – Respondents
Application U/s 482 Nos. 43493, 43580 of 2019
Decided On : 04-02-2020
Criminal Procedure Code, 1973 – Section 482 – Penal Code, 1860 – Sections 147, 148, 149, 302, 307 and 120B – Quash of Criminal proceedings – Police investigated the matter and submitted the charge sheet against the accused persons – Held, initially the accused persons were charged for an offence under Section 120B read with Section 302 IPC and later on charges were amended to Sections 147, 148, 149, 302 IPC and initially the accused persons were considering that they had to defend themselves against the charge with which they were charged that is criminal conspiracy, later on they were charged with offence of murder they were charged under Sections 147, 148, 149, 302 IPC now they have to defend themselves under the amended charge and the amended charges are bound to create prejudice to the applicants. In order to take care of the said prejudice, it was incumbent upon the prosecution to recall the witnesses, examine them in the context of the charge under Section 302 IPC and other relevant sections and allowed the accused persons to cross-examine the prosecution witnesses in the light of amended charge – Proper to direct that the learned trial Court will provide an opportunity to the applicants for cross-examination of the prosecution witnesses in the interest of justice and will protect the constitutional rights of due hearing and fair trial of the accused.
Facts of the Case
Initially both the accused persons were charged under Section 120-B read with Section 302 IPC and again charged under Section 120B and 302 IPC and they were not charged with the offence under Sections 147, 148, 149, 302 IPC.
Finding of the Court
Initially the accused persons were charged for an offence under Section 120B read with Section 302 IPC and later on charges were amended to Sections 147, 148, 149, 302 IPC and initially the accused persons were considering that they had to defend themselves against the charge with which they were charged that is criminal conspiracy, later on they were charged with offence of murder they were charged under Sections 147, 148, 149, 302 IPC now they have to defend themselves under the amended charge and the amended charges are bound to create prejudice to the applicants. In order to take care of the said prejudice, it was incumbent upon the prosecution to recall the witnesses, examine them in the context of the charge under Section 302 IPC and other relevant sections and allowed the accused persons to cross-examine the prosecution witnesses in the light of amended charge – Proper to direct that the learned trial Court will provide an opportunity to the applicants for cross-examination of the prosecution witnesses in the interest of justice and will protect the constitutional rights of due hearing and fair trial of the accused.
Result: Application disposed of.
JUDGMENT :
AJIT SINGH, J.
1. Heard Sri Anoop Trivedi, learned Senior Counsel assisted by Sri Mohd. Rashid Siddiqui and Abhinav Gaur, learned counsel for the applicant and Sri Swetashwa Agarwal, learned counsel for the opposite party no. 2 and learned A.G.A. for the State.
2. The present 482 Cr.P.C. Application No. 43580 of 2019 has been filed to quash the orders dated 18.11.2019, 19.11.2019 and 20.11.2019 passed by learned Additional Sessions Judge, Baghpat in S.T. No. 26 of 2017 and S.T. 149 of 2017, State vs. Rekha and Others, under Sections 147, 148, 149, 302, 307 and 120B IPC, arising out of Case Crime No. 271 of 2016, Police Station Binauli, District Baghpat.
3. So far as the Application under Section 482 Cr.P.C. bearing No. 43493 of 2019 is concerned, has also been filed to quash the order dated 19.11.2019 passed by Additional Sessions Judge, IVth, Baghpat in Session Trial No. 26 of 2017, State vs. Satendra and Others, arising out of Case Crime No. 271 of 2016, under Sections 147, 148, 149, 302, 307, 120B IPC, Police Station Binauli, District Baghpat.
4. Both these applications mentioned above are being decided by a common judgment and order as the controversy involved in these two applications is same and identical.
5. The police investigated the matter and submitted the charge sheet against the accused persons, namely, Satendra, Smt. Rekha, Manoj, Nirbhay, Anil, Subodh along with Arjun and the trial commenced. The accused Rekha was charged under Section 120B read with Section 302 IPC and she was further charged under Section 120B read with Section 307 IPC and the accused Manoj was also charged under Section 120B read with Section 302 and 307 IPC and all other accused persons were charged under Sections 302, 147, 148, 149, 307 and 120B IPC and session trial commenced and evidence of prosecution witnesses were recorded. After recording the evidence of the prosecution witnesses, an application was given, copy whereof has been annexed on page 25 onwards under Section 216 Cr.P.C. with the prayer to amend the charges against the accused persons, namely, Rekha and Manoj, charged under Sections 147, 148, 149, 302, 307, 120B IPC. This application was moved on 31.7.2019 and the Court allowed this application vide order dated 18.11.2019, the order has been annexed on page 36 of the paper book and directed that the charge be amended and thereafter the charges against the accused persons, namely, Smt. Rekha and Manoj were amended on 19.11.2019. After the amendment of the charge against the accused Smt. Rekha and Manoj, an application was moved by the prosecution, which is annexed on page 53; which states that the witnesses were present in the Court and they were also ready for cross-examination, but no order was passed by the learned trial Court on the application dated 19.11.2019, moved by the prosecution. Then, again, an application was moved by accused namely Smt. Rekha praying therein that the accused persons may be given an opportunity to cross-examine the prosecution witnesses and the same was rejected. In that application the order was passed on 19.11.2019 by the learned trial Court, which is annexed on page 40 onwards and the operative portion reads as follows:-
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