A.F.R.

Neutral Citation No. - 2024:AHC:4001 Reserved on 07.12.2023 Delivered on 09.01.2024 Court No. - 82 Case :- MATTERS UNDER ARTICLE 227 No. - 5914 of 2023 Petitioner :- Diwakar Singh Respondent :- State of U.P.

Counsel for Petitioner :- Utkarsh Birla Counsel for Respondent :- G.A.

Hon'ble Mrs. Jyotsna Sharma, J.

1. Heard Sri Utkarsh Birla, learned counsel for the petitioner and Sri Ram Kumar Verma, learned AGA for the State.

2. This petition under Article 227 of the Constitution has been filed by the petitioner-Diwakar Singh with a prayer to set aside the order dated 18.01.2023 passed by the Judicial Magistrate, Court no. 5, Varanasi in criminal case no. 3272 of 2019, by which the applications dated 19.07.2021 and 02.08.2021 were rejected, with a further prayer to issue an appropriate direction to the Judicial Magistrate/ the court concerned to comply with the interim order passed by this court in criminal misc.

petition no. 2160 of 2023 dated 27.04.2023.

3. Relevant facts are as below:-

(i) The petitioner Diwakar Singh was posted as Sub-Inspector of police and he lodged an FIR, case crime no. 444 of 2000 under sections 307 and 392 IPC and section 3 of FEMA Act against Durga Prasad Agarwal and few others;

(ii) The police investigated the matter and filed a chargesheet, not against the persons named therein but against the petitioner the first informant Diwakar Singh himself, under sections 392, 218, 467, 468, 120-B IPC on 25.07.2003, stating therein that Sub-Inspector Diwakar Singh, with his unknown associates hatched a conspiracy showing a fake incident of loot and he also prepared false papers to show a false incident as genuine one. Durga Prasad Agarwal and number of others were made witness against Sub-Inspector Diwakar Singh;

(iii) During the course of proceedings of the trial, the accused Diwakar Singh moved an application on 13.10.2020, requesting the trial court concerned to summon the files of departmental proceedings and to summon/direct the police officers to remain present on the dates of hearing.

(iv) The trial court wrote a letter dated 20.10.2020 to Additional Director General of Police, Anti-Corruption for production of original record. The department concerned sent the original record by a covering letter dated

29.10.2020;

(v) The prosecution examined its witnesses and the prosecution evidence stood closed on 04.05.2021. Thereafter the statement the accused were recorded under section 313 Cr.P.C.;

(vi) At the stage of defence evidence, the accused moved an application dated 19.07.2021 with following prayers:-

“ …….to pass order directing the prosecution to provide copy of DFR dated

05.06.2022, Interrogation Report dated 15.09.2000 and Statements of PW-5

Shri Shashank Agrawal and Pw-6 Shri Durga Prasad Agrawal which were

recorded by the SIT, summon the case property Rs. 2,47,500/- and re-call

PW-1 Shri Babu Chand and PW-6 Shri Durga Prasad Agrawal and

summon Shri Bua Singh (Retd. DGP) and Shri Atul (Retd. DGP) as defense witnesses to meet the ends of justice.”

(vii) He moved another application dated 02.08.2021 with following prayer:-

“………. to pass order directing to the prosecution to re-call the PW-1 Shri Babu Chand and PW-6 Shri Durga Prasad Agrawal. It is further prayed that Shri Bua Singh (Retd. DGP), Shri Atul (Retd. DGP) and Shri Vijay Kumar Agrawal (Retd. IGP) may also be summoned as defense witnesses for verifying letters, approval orders and DFRs and exhibiting them as Exhibit-Kha to meet the ends of justice.”

(viii) The learned Magistrate dismissed his both the applications (dated

19.07.2021 and 02.08.2021) by a detailed order passed on 16.09.2021 (ix) The accused preferred a criminal revision no. 242 of 2021. The revisional court partly allowed the revision and passed an order on

26.04.2022 as below:-

"नि(cid:3)गरा(cid:3)ीकर्ताा(cid:10) द्वारा प्रस्र्ताुर्ता नि(cid:3)गरा(cid:3)ी आंशि(cid:19)क रूप से स्वीकार निकया जार्ताा ह।ै अवर न्यायालय द्वारा श्री बुआ सिंसह, श्री अर्ताुल, श्री निवजय कुमार अग्रवाल को र्तालब (cid:3) निक