Court No. - 71

Case :- APPLICATION U/S 482 No. - 32860 of 2022

Applicant :- Pinku @ Tribhash

Opposite Party :- State Of U.P And 4 Others

Counsel for Applicant :- Raghubir Singh

Counsel for Opposite Party :- G.A.

Hon'ble Mrs. Sadhna Rani (Thakur),J.

Heard learned counsel for the applicant, learned A.G.A. for the

State and perused the record.

By moving this application, learned counsel for the applicant has

prayed to set aside the judgment and order dated 2.9.2022 passed

by ADJ/ Additional Special Judge, POCSO, court no. 1, Firozabad

in S.T. No. 302 of 2011, case crime no. 151-A/ 2002, State Vs.

Vijaypal and others, under sections 147, 148, 323, 324 I.P.C.,

police station Khairagarh District Firozabad. By the impugned

order dated 2.9.2022, the application of the applicant under section

311 Cr.P.C. was rejected.

It is argued by the learned counsel for the applicant that it was a

cross case. In cross case four persons from the side of the applicant

including the applicant were convicted and they are undergoing the

sentence awarded to them. As it was a cross case so in the present

case the applicant is the informant, though it is true that the case is

of the year 2002 under sections 147, 148, 149, 504, 307 I.P.C. In

this case the investigation was done by six Investigating Officers

and out of six Investigating Officers only one I.O. who had

submitted chargesheet has been examined by trial court. Rest five

Investigating Officers and the police personnel who registered the

FIR were not produced in the trial court. Though because of the

death of that FIR writer he could not be produced, but if the FIR

writer has died, the FIR can be proved on his behalf by some other

person also. When the applicant moved an application under

section 311 Cr.P.C. before the trial court, the application was

rejected only on ground that as FIR writer has died and it is not

possible to produce him in evidence. So far as rest five

Investigating Officers are concerned, it has been mentioned in the

order that the previous judicial officer issued non bailable warrants

and notices under section 350 Cr.P.C. against the witnesses. Last

opportunity was also given to the prosecution but the prosecution

failed to bring the rest witnesses and at last prosecution officer

(ADGC) made endorsement that no other witness is to be

produced. Then only the opportunity of producing rest witnesses

from prosecution side was put to an end and the case was fixed for

the statement of accused persons under section 313 Cr.P.C.

It is submitted that all the witnesses are police personnel, it is not

possible for the first informant himself to secure their presence in

the court. It was only for the ADGC of the court concerned to

summon these witnesses and pray for issuance of coercive process

against them but the same has not been done. To the most unjustice

to the prosecution is the endorsement by the ADGC concerned that

no more prosecution witness is to be produced, so the court closed

the prosecution evidence and on the same ground his application

under section 311 Cr.P.C. was also rejected.

From perusal of the record, it is found that it is true that the case is

of the year 2002 and all the rest witnesses to be produced are the

police personnel whom the first informant cannot produce in the

court, it is only for the court concerned either sou moto or on the

prayer of ADGC to issue coercive process to secure the attendance

of the police witnesses. It is argued that it is a cross case and in the

case where the applicant side was accused in S.T.No. 303 of 2011

that trial has ended into the conviction. The applicant along with

other co accused persons is undergoing sentence, if the proper

chance is not given to the prosecution to produce it's witnesses or

the court does not take initiative to issue coercive process against

the witnesses, it would certainly cause harm to the prosecution on

the face of record itself without interning into merit