# Mukesh Sharma v. State of U.P &Anr

- **Citation:** (2019) 1 ILRA 109
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-31
- **Case number:** CIVIL MISC. WRIT PETITION No. 24545 of 2019
- **Bench:** Rajul Bhargava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mukesh-sharma-v-state-of-u-p-anr-44411
- **Pages:** 9

## Headnote

A. Section 233(3) Cr.P.C - Accused- right
to summon defence witnesses - Trial - is
sacrosanct fundamental right - Request
to summon defence witness can be
turned down only if the Judge considers
that it is for vexation or delay or for
defeating the ends of justice - Court is
required to record its plausible reason
for refusing the request of the accused
to summon a defence witness. (Para 9)

B. Constitution of India - Article 20(3)-
Right to Silence-Article 20(3) constitutes
right to silence of accused which has
various facets: One is that the burden is on
the State or rather the prosecution to prove
that the accused is guilty. Another is that an
accused is presumed to be innocent till he is
proved to be guilty. A third is the right of
the
accused
against
self-incrimination,
namely, the right to be silent and that he
cannot be compelled to incriminate himself.
 (Para 13)

Accused moved application under Section 233
Cr.P.C. to summon defence witnesses to prove
his plea of alibi - Trial Judge rejected
application holding that application was moved
merely to delay the trial as plea of alibi was
set up by the accused for the first time and
was never made part of investigation or
discharge was claimed on its basis or stated a
word about leading defence evidence in
respect of alibi under Section 313 Cr.P.C.-
Held-Rejection of application on the ground
that no plea of alibi was suggested to any of
the prosecution witnesses nor disclosed it in
his statement recorded under Section 313
Cr.P.C., is illegal as the accused was not
obligated to make any such suggestion as
even if accused has suggested any plea of alibi
the prosecution could not have led any
evidence in rebuttal thereof, when the
prosecution evidence was being recorded.

Application allowed.

List of Cases Cited:-
110 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

1 All. Mukesh Sharma Vs. State of U.P. & Anr.
109
the ground by them and the household goods
were stolen away. These averments have been
supported by the complainant as well as her 2
daughters in their statements mentioned
above, therefore it cannot be denied that on
the basis of those statements the offences as
mentioned above would be prima facie made
out. If these allegations are taken to be true,
certainly the offences of the above-mentioned
sections would be made out. It cannot be held
at this stage that merely because the injuries
have not been found to have been caused to
the opposite party no. 2, offence under Section
323 would not be held to be made out, the
opposite party no. 2 has clearly stated that she
approached the police but the police did not
send her for medical examination. It does not
appear that any grave injustice would be
caused to the accused if this prosecution is
allowed to continue. It does not fall in the case
of rare case in which jurisdiction of 482 Cr.
P.C. would need to be invoked. The theory of
counterblast cannot be allowed to be pleaded
in the present case from the side of the
applicants. Therefore I do not see any
justification in quashing the proceedings in the
present case. Accordingly this application
deserves to be dismissed and is dismissed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.07.2019

BEFORE
THE HON'BLE RAJUL BHARGAVA, J.

CIVIL MISC. WRIT PETITION No. 24545 of 2019
(u/s -482 Cr. P.C.)

Mukesh Sharma ...Applicant
Versus
State of U.P &Anr. ...Opposite Parties

Counsel for the Applicant:
Sri J.B.Singh

Counsel for the Opposite Parties:
A.G.A., Sri Deepak Dubey, Sri Siddarth
Shankar Mishra.

A. Section 233(3) Cr.P.C - Accused- right
to summon defence witnesses - Trial - is
sacrosanct fundamental right - Request
to summon defence witness can be
turned down only if the Judge considers
that it is for vexation or delay or for
defeating the ends of justice - Court is
required to record its plausible reason
for refusing the request of the accused
to summon a defence witness. (Para 9)

B. Constitution of India - Article 20(3)-
Right to Silence-Article 20(3) constitutes
right to silence of accused which has
various facets: One is that the burden is on
the State or rather the prosecution to prove
that the accused is guilty. Another is that an
accused is presumed to be innocent till he is
proved to be guilty. A third is the right of
the
accused
against
self-incrimination,
namely, the right to be silent and that he
cannot be compelled to incriminate himself.
 (Para 13)

Accused moved application under Section 233
Cr.P.C. to summon defence witnesses to prove
his plea of alibi - Trial Judge rejected
application holding that application was moved
merely to delay the trial as plea of alibi was
set up by the accused for the first time and
was never made part of investigation or
discharge was claimed on its basis or stated a
word about leading defence evidence in
respect of alibi under Section 313 Cr.P.C.-
Held-Rejection of application on the ground
that no plea of alibi was suggested to any of
the prosecution witnesses nor disclosed it in
his statement recorded under Section 313
Cr.P.C., is illegal as the accused was not
obligated to make any such suggestion as
even if accused has suggested any plea of alibi
the prosecution could not have led any
evidence in rebuttal thereof, when the
prosecution evidence was being recorded.

Application allowed.

List of Cases Cited:-
110 INDIAN LAW REPORTS ALLAHABAD SERIES
1. State of Orissa Versus Debendra Nath
Padhi, 2004(8) Supreme Court Cases 568
followed

2. Ram Naresh and others Versus State of
Chhattishgarh (2012)2 Supreme Court Cases
(Cri) 382

3. Natasha Singh Versus CBI, (2013) 5
S.C.C.74 (E-5)

(Delivered by Hon'ble Rajul Bhargava, J.)

1. Heard Sri J.B. Singh, learned
counsel for the applicant, Sri Deepak
Dubey and Sri Siddhartha Shankar
Mishra, learned counsels for opposite
party no. 2 as well as learned A.G.A. and
perused the material placed on record.

2. Instant application has been filed
with the prayer to quash the impugned
order dated 30.1.2019 and 14.06.2019
passed
by
Additional
District
and
Sessions Judge, Hapur in Session Trial
No.253 of 2016 (State Versus Ankush and
others) bearing Case Crime No.408 of
2014 under Sections 147, 148, 149, 302,
120-B I.P.C. and 7 Criminal Law
Amendment Act, Police Station Hapur
Nagar, District Hapur and further direct
learned trial judge to summon the witness
i.e.
record
keeper
/
Officer
of
(Immigration Department), Indira Gandhi
International Airport, New Delhi along
with
record
as
mentioned
in
the
application moved by the applicant under
Section 233(2) Cr.P.C.

3. The factual background, in short,
giving rise to present petition is that
according to prosecution the F.I.R. was
lodged by opposite party no.2 against six
accused persons including the applicant
registered under aforesaid case crime
number and sections on 13.07.2014 at 1.15
p.m. It is alleged that the applicant and his
associates on account of enmity over
family property dispute on 13.07.2014 at
11.45 a.m. surrounded informant's son in
front of his house and all the accused
resorted to indiscriminate firing due to
which he succumbed to the injuries
subsequently. After investigation chargesheet was laid and the case was committed
to the court of sessions. It is pertinent to
mention here that the applicant is in jail
since 5.12.2014. The applicant moved his
bail application in which he has taken
specific plea that aforesaid incident took
place at about 11.45 a.m. on 13.07.2014
near the house of the deceased but in fact
the applicant was not present in India at the
time and date of the incident and was
present in Nepal. In fact, the applicant
along with his brother, Sanjay had gone to
Kathmandu on 12.07.2014 by Indigo
No.6E31 and the flight departed at 11.25
a.m. on 12.07.2014, the copy of Boarding
Passes and air tickets were also appended
along with the bail application. It was also
stated that the applicant and co-accused,
Sanjay came back from Kathmandu to
New Delhi by Indigo Flight No.6E34,
departure time 8.10. p.m. on 13.07.2014
and the applicant was travelling in the said
Flight on Seat No.47. The copies of the air
tickets and the Boarding Passes and
relevant documents were also appended
along with bail application. It was also
stated
that
during
12.07.2014
and
13.07.2014, he and co-accused,Sanjay
stayed
in
Shiv
Shanker
Hotel
Jaybageshwar Pashupati Nath, Kathmandu,
Nepal. Copy of the receipt of said hotel
was
also
appended
with
the
bail
application. Therefore, a specific plea of
alibi was taken that it was impossible for
the applicant to be present at the place of
occurrence on 13.07.2014 at about 11.45
a.m. by no stretch of imagination.
1 All. Mukesh Sharma Vs. State of U.P. & Anr.
111

4. The case was committed to the court
of sessions. After the closure of prosecution
evidence, the statement of the applicant and
other accused was recorded under Section 313
Cr.P.C. on 12.11.2018. In reply to a specific
question as to whether the applicant wants to
lead any defence evidence, to which his
answer was in affirmative (th gakWaa++).
Thereafter, the case was fixed for defence
evidence. Insofar as the applicant is
concerned, he moved an application 28Ga
under Section 233 Cr.P.C. to summon the
witnesses mentioned in the application to
prove his plea of alibi that he was travelling
from
New
Delhi
to
Kathmadu
and
Kathmandu to New Delhi in Indigo Flight
No.6E31 and 6E34 on 12.07.2014 and
13.07.2014. In its proof, tickets and boarding
passes were also appended with the
application. Besides it, in support of plea of
alibi papers regarding stay of the applicant in
Shiv Shanker Hotel Jaybageshwar Pashupati
Nath, Kathmandu, Nepal were also filed,
especially the cash receipts. The prayer for
summoning following was made:

1.
Record
keeper/concerned
OfficerIndiraGandhiInternationalAirport,
New Delhi along with record of Indigo
Flight Nos. 6E31 dated 12.07.2014 and
6E34 dated 13.07.2014.

2. Record to prove that the
applicant had travelled on the aforesaid
boarding passes in respect of aforesaid
flights.

3. Manager, Shiv Shanker Hotel
Jaybageshwar
Pashupati
Nath,
Kathmandu, Nepal along with copy of the
record of cash receipt dated 13.07.2014.

5. The said application was strongly
opposed
by
the
learned
Additional
Government Counsel (criminal) as well as
learned counsel for the informant on the
ground that the application was moved by
the applicant to prove his defence plea of
alibi for the purpose of vexation, causing
delay in disposal of the trial and for defeating
the ends of justice. Therefore, the same may
be rejected. It was also objected that plea of
alibi taken by the applicant is an afterthought
one in order to get himself acquitted whereas
this plea of alibi was neither disclosed by
him to the Investigating Officer nor at the
time of framing of charge that on the basis of
plea of alibi, he may be discharged nor any
such suggestion was given to any witness
that he was present in Kathmandu at the time
of the incident and lastly even in statement
under Section 313 Cr.P.C. the applicant has
not stated anything about plea of alibi.
Therefore, the application moved for defence
evidence is liable to be rejected.

6. Learned trial judge vide order
dated
30.1.2019
on
the
aforesaid
objections
raised
by
Additional
Government Counsel (criminal) as well as
learned counsel for the informant, rejected
the application under Section 233 Cr.P.C.
He has quoted Section 233 (3) Cr.P.C.
and has recorded that it appears that this
plea of alibi is being set up by the
applicant for the first time and was never
made part of investigation or discharge
was claimed on its basis or stated a word
about leading defence evidence in respect
of alibi under Section 313 Cr.P.C. that at
the time of incident he was in Nepal. On
this ground he recorded that it appears
that this application has been moved
merely to delay the trial.

7. Learned counsel for the applicant
has submitted that the incident took place
in the year 2014 and charge-sheet was
filed on 3.09.2014. The case was
thereafter committed to the court of
sessions and it remained pending for more
than
three
years
for
recording
of
112 INDIAN LAW REPORTS ALLAHABAD SERIES
prosecution evidence and the statement of
the applicant and other accused under
Section 313 Cr.P.C. was recorded on
12.11.2018 and the order dated 30.1.2019
could not be challenged by the applicant
as he is languishing in jail since
5.12.2014. However, another application
under Section 233(2) Cr.P.C. was moved
on behalf of the applicant for summoning
aforesaid witnesses to prove his plea of
alibi. The opposite party no.2 again filed
objections
to
the
said
application.
Opposite party no.2/informant moved two
transfer applications before Sessions
Judge on 12.3.2019 and 4.4.2019. The
second application i.e. 54Kha moved on
behalf of the applicant for leading defence
evidence to establish plea of alibi has
again been rejected by the trial judge vide
impugned order dated 14.06.2019 more or
less on the same ground as the same was
rejected by earlier order dated 30.1.2019.
Learned counsel for the applicant has
assailed both the impugned orders on the
ground that learned trial judge has not
applied his judicial mind and has not
passed impugned orders in the light of
true scope and ambit of provisions of
Section 233(2)Cr.P.C. and has merely
recorded that application to lead defence
evidence has been made for the purpose
of vexation, delay and defeating the ends
of justice and without giving any
plausible reason rejected the same.

8. One of the grounds for rejecting
the application for summoning of the
witnesses, Manager, Shiv Shanker Hotel
Jaybageshwar Pashupati Nath, Kathmandu,
Nepal is that the said witness resides in a
foreign country and if he is summoned it
shall take considerable time to examine
him which will delay the trial. I may record
that the reasons given by the learned Judge
are apparently preposterous. There are
various pronouncements that the statement
of the such witnesses can be recorded
through Video Conferencing and if the
accused is ready to bear the expenses of
the Manager of the Hotel to prove that the
applicant had stayed in the hotel on
12.07.2014 and 13.07. 2014. There is no
reason not to issue summon to him.
However, the Court can always issue
process/summons through embassy of
Nepal to the said witness and as such no
Visa or immigration formality is to be
adopted in view of Treaty in this behalf
between our country and Nepal.

9. Before dealing with the reasoning
given by the trial judge for rejecting the
applications of the applicant for leading
defence evidence, it is to be understood as
to what is the scope of Section 233 (3)
Cr.P.C. A bare reading of sub-section (3)
of Section 233 Cr.P.C. would reveal that
if the accused applies for the issue of any
process for compelling the attendance of
any witness or the production of any
document or thing, the Judge shall issue
such process unless he considers, for
reasons to be recorded, that
such
application should be refused on the
ground that it is made for the purpose of
vexation or delay or for defeating the ends
of justice. Moreover, the court is required
to record its reasoning for refusing the
request to summon a defence witness. A
bare perusal of the Section 233(3) Cr.P.C.
would reveal that except on those grounds
the request cannot be turned down on any
ground. It is also well settled that the trial
court cannot deny an accused the right to
summon witnesses, he /she has cited to
examine them as defence witnesses which
is his sacrosanct fundamental right.

10. The Hon'ble Apex Court in the
case
of
Natasha
Singh
Versus
1 All. Mukesh Sharma Vs. State of U.P. & Anr.
113
CBI,(2013) 5 S.C.C.74 has held that "fair
trial entails the interests of the accused,
the victim and of the society and,
therefore, includes the grant of fair and
proper
opportunities
to
the
person
concerned and the same must be ensured
as this is the Constitutional as well as
human right."

11. Learned counsel for the applicant
has submitted that the applicant has a
fundamental and legal right to place on
record all evidences in respect of defence to
prove his innocence and plea of alibi which
he has to establish to the hilt and if he fails to
prove this plea of alibi this would be
additional circumstance/which can be read
along with proven prosecution evidence to be
read against the accused to record his
conviction. He has further stated that it is
well settled that if no acquittal is passed
under Section 232 Cr.P.C., the court has to
call upon the accused to enter on his defence.
Admittedly, in this case, no acquittal has
been passed under Section 232 Cr.P.C.
Therefore, the provisions of Section 233(3)
Cr.P.C. are fully attracted. The accused has a
right to be provided an opportunity to adduce
any evidence in support of his defence. This
right of the accused is a very valuable right
which cannot be curtailed in any way.
Therefore, a heavy duty is cast upon the
Court to see as to whether or not the defence
evidence sought to be summoned, is
necessary for defending the charge levelled
against the accused. If it is so, the trial judge
has to summon the defence witnesses and
has to adopt a reasonable approach in such a
matter and should not reject the prayer for
summoning defence evidence except on the
grounds provided in sub-section (3) of
Section 233 of the Code.

12. The important question of law
that arises for determination in the present
is as to whether it is incumbent on the part
of accused to spell out his defence
including the plea of alibi at the stage of
investigation, framing of charge while
prosecution evidence is being recorded
and at the stage of recording of statement
under Section 313 Cr.P.C..

13. In order to answer aforesaid
issues, the Court cannot lose sight of
Article 20(3) which constitutes right to
silence of accused which has various
facets: One is that the burden is on the
State or rather the prosecution to prove
that the accused is guilty. Another is that
an accused is presumed to be innocent till
he is proved to be guilty. A third is the
right
of
the
accused
against
self
incrimination, namely, the right to be
silent and that he cannot be compelled to
incriminate himself. Right to silence to an
accused came to be included in Universal
Declaration of Human Rights, 1948,
Article 11.1 thereof reads:

"Everyone charged with a penal
offence has the right to be presumed
innocent until proved guilty according to
law in a public trial at which he has had
all the guarantees necessary for his
defence. "

14. The Law Commission in its
180th report on Article 20(3) of the
Constitution of India considered the scope
of right of silence, in view of some
developments
in
United
Kingdom,
Austrailia, USA and other countries
diluting the right to silence of the accused
at the stage of interrogation and in
criminal
trial
proceedings.
The
Commission was of the opinion that the
right is protected by Articles 20(3) and 21
of the Constitution and Sections 161(2),
313 (3) and 315 of the Code of Criminal
114 INDIAN LAW REPORTS ALLAHABAD SERIES
Procedure, 1973. If the changes made in
U.K. or those proposed in Australia are
introduced in India, such changes will be
ultra vires of Articles 20(3) and 21 of the
Constitution of India. Therefore, no
dilution of the existing right to silence
need be made nor can be made.

15. Besides it, there is no standard
mechanism for disclosing an alibi in our
country as is mandated in Canada, USA,
Austrailia which have stringent "alibi
notice-laws". The accused for tactical
reasons, or may be because of some
mistrust of the police in our country may
not divulge or disclose the information to
the police during investigation and also
not disclose in advance in trial. The
requirements of an alibi are strict that a
false alibi or deliberate lie could be used
as some evidence of guilt against the
accused. Indeed, in the country where
right of silence has been diluted by "alibi
notice-laws" the accused is obligated to
inform the police in prescribed form about
his plea of alibi so that the same is
properly interrogated by Investigating
Agency. However, in our country more
often than not even if the accused
discloses the plea of alibi in advance, the
same
is
never
properly
investigated/verified
in
an
impartial
manner for any reason whatsoever, maybe
incompetence or lack of investigative
skills or for any other extraneous
consideration.

16. I may record that an accused
person does not have to disclose, his
defence
including
alibi,
and
the
consequence of failure to disclose an alibi
in a timely manner at the time of
investigation and trial judge may draw an
adverse inference
that it has been
fabricated, provided the accused fails to
prove the same by standards as required
under Section 103 of Indian Evidence Act
and if the evidence of alibi is found to be
fabricated,
this
may
be
used
as
circumstantial
evidence
to
draw
an
inference or "consciousness" of guilt.
Nevertheless, the alibi that is merely
disbelieved or rejected cannot serve to
corroborate
or
complement
the
prosecution's case, let alone permit an
inference of guilt by the accused.

17. This facet of disclosure of plea of
alibi at the earliest may also be looked into
from a different angle. Nevertheless, even if
the defence has notified the prosecution his
intention to present an alibi, the prosecution
has to wait until the accused has presented
the evidence before it seeks to establish that
it was fake and/or fabricated. The reason for
this is prosecution cannot rebut a evidence
not called unless he is afforded opportunity
to lead defence evidence and accused is
called upon to lead evidence as provided
under Section 233 (3)Cr.P.C. the accused is
under no duty to advance any particular
defence.

18. In the light of aforesaid
discussion made hereinabove, I find that
our Constitution itself provided right to
silence to the accused and he is also
permitted to take inconsistent pleas,
rejection of application by the learned
judge vide impugned orders on the ground
that no such plea of alibi was suggested to
any of the prosecution witnesses nor
disclosed it in his statement recorded
under Section 313 Cr.P.C., is illegal. In
my opinion, the accused was not
obligated to make any such suggestion as
even if he has suggested any plea of alibi
the prosecution could not have led any
evidence in rebuttal thereof, when the
prosecution evidence was being recorded.
1 All. Mukesh Sharma Vs. State of U.P. & Anr.
115
The
prosecution
shall
have
ample
opportunity to cross examine the defence
witnesses at length in order to discard the
evidence of alibi of the applicant when
defence
witnesses
are
examined.
However, I may record that the plea of
alibi was taken by the applicant in his bail
application before the Sessions Judge,
Ghaziabad on 23.1.2015 and learned
Sessions Judge while rejecting the bail
application on 23.1.2015 has recorded
that "अभियुक्त मुकेश शममा के भिद्वमन अभििक्तम द्वमरम यह िी तका
भियम गयम है भक िह घटनम की frfथ पर कमठममांडू गयम हुआ थम
kPlea of alibi dksइस स्तर पर नहीं िेखम जम सकतम है क्योंभक िह
lk{;कम भिषय gSk"

19. As already noted that the
applicant is languishing in jail since
5.12.2014 and he was nothing to gain by
delaying trial as prosecution evidence has
already been recorded and if the valuable
right of the applicant of bringing plea of
alibi on record by him by examining the
witnesses is denied to him it shall derail
fair trial and the applicant can never prove
his innocence if at all he is convicted by
the trial court. I may further record that
finding of the trial judge that applicant did
not disclose plea of alibi under Section
313 Cr.P.C. is not sustainable inasmuch
as he has stated that he would lead
defence evidence.

20. Per contra, learned A.G.A. as well
as learned counsel for the informant has
stated that impugned orders passed by the
Sessions Judge are wholly legal and justified
and the defence plea of alibi by the applicant
has been raised at a belated stage after
fabrication of documents and it squarely falls
within those three presumptions on the basis
of which the trial judge is empowered to
reject the application for leading defence
evidence.

21. One of the reasons assigned by
the trial judge is that the accused did not
file any discharge application under
Section 227 Cr.P.C. on the basis of plea
of alibi. In this behalf, I may refer to the
judgement of Apex Court, rendered in the
case of State of Orissa Versus Debendra
Nath Padhi, 2004(8) Supreme Court
Cases 568 which is quoted below:

" .....Further, at the stage of
framing of charge roving and fishing
inquiry is impermissible. If the contention
of the accused is accepted, there would be
a mini trial at the stage of framing of
charge. That would defeat the object of
the Code. It is well-settled that at the
stage of framing of charge the defence of
the accused cannot be put forth. The
acceptance of the contention of the
learned counsel for the accused would
mean permitting the accused to adduce
his defence at the stage of framing of
charge and for examination thereof at
that stage which is against the criminal
jurisprudence. By way of illustration, it
may be noted that the plea of alibi taken
by the accused may have to be examined
at the stage of framing of charge if the
contention of the accused is accepted
despite the well settled proposition that it
is for the accused to lead evidence at the
trial to sustain such a plea. The accused
would be entitled to produce materials
and documents in proof of such a plea at
the stage of framing of the charge, in case
we accept the contention put forth on
behalf of the accused. That has never
been the intention of the law well settled
for over one hundred years now. It is in
this light that the provision about hearing
the submissions of the accused as
postulated by Section 227 is to be
understood. It only means hearing the
submissions of the accused on the record
116 INDIAN LAW REPORTS ALLAHABAD SERIES
of the case as filed by the prosecution and
documents
submitted
therewith
and
nothing more. The expression 'hearing the
submissions of the accused' cannot mean
opportunity to file material to be granted
to the accused and thereby changing the
settled law. At the state of framing of
charge hearing the submissions of the
accused has to be confined to the material
produced by the police."

22. Learned counsel for the opposite
party
has
placed
reliance
on
the
judgement rendered in the case of Ram
Naresh and others Versus State of
Chhattishgarh (2012) 2 Supreme Court
Cases (Cri) 382 in which plea of alibi was
rejected
as
the
defences
witnesses
produced by the accused were related and
argued that plea of alibi was rejected by
the apex court as the same was not
disclosed
by
the
accused
during
investigation and arrest.

23. I have carefully and consciously
gone through the aforesaid judgement
wherein the apex court has discarded the
testimony of the defence witnesses on the
ground that one of them was wife of the
accused and she was highly interested and
during investigation she did not inform
the police that her husband was present in
their house and not at the place of
occurrence. However, paras 49 and 50 of
the said judgement lend support to the
reasons recorded by me hereinabove
which are quoted below:

"49. In terms of Section 313
Cr.P.C., the accused has the freedom to
maintain silence during the investigation
as well as before the Court. The accused
may choose to maintain silence or
complete denial even when his statement
under Section 313 Cr.P.C. is being
recorded, of course, the Court would be
entitled to draw an inference, including
adverse inference, as may be permissible
to it in accordance with law.

50.
Right
to
fair
trial,
presumption of innocence unless proven
guilty and proof by the prosecution of its
case beyond any reasonable doubt are the
fundamentals
of
our
criminal
jurisprudence.
When
we
speak
of
prejudice to an accused, it has to be
shown that the accused has suffered some
disability or detriment in relation to any
of these protections substantially. Such
prejudice should also demonstrate that it
has occasioned failure of justice to the
accused."

24. In the light of aforesaid,
impugned order dated 30.1.2019 and
14.06.2019 passed by Additional District
and Sessions Judge, Hapur in Session
Trial No.253 of 2016 (State Versus
Ankush and others) bearing Case Crime
No.408 of 2014 under Sections 147, 148,
149, 302, 120-B I.P.C. and 7 Criminal
Law Amendment Act, Police Station
Hapur Nagar, District Hapur are quashed.
However, the applicant may apply for
issuing any process for compelling the
attendance or production of any document
from the defence witnesses as mentioned
in the earlier applications only within two
weeks from today. The trial judge shall
pass appropriate order in this behalf and
shall afford due opportunity to defence, of
which the accused shall not take an undue
advantage
causing
further
delay
in
deciding the trial which is pending since
2015 and the applicant is in jail since
5.12.2014. Learned trial judge shall
expedite the trial without granting undue
adjournments to either side and decide the
same within four months from the date of
1 All. Dhananjay Vs. State of U.P. & Anr.
117
production of a certified copy of this
order.

25. The application under Section
482 Cr.P.C. stands allowed, accordingly.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.07.2019

BEFORE
THE HON'BLE RAJIV JOSHI J.

CIVIL MISC. WRIT PETITION No. 24336 of 2019
(u/s -482 Cr. P.C.)

Dhananjay ...Applicant
Versus
State of U.P &Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Dinesh Rai

Counsel for the Opposite Parties:
A.G.A.

A. Section 210(2) Cr.P.C. - Bar on parallel
proceedings of same offence- right to file
a complaint under different section of
law cannot be taken away- police report
submitted - cognizance not taken by the
magistrate

Held:- Mere submission of police report
under Section 173 not sufficient unless
cognizance of any offence on such report is
taken against the accused in the complaint
case.(E-10)
(Delivered by Hon'ble Rajiv Joshi, J.)

1. Heard Sri Dinesh Rai, learned
counsel for the applicant and learned
A.G.A. for the State-respondents.

2. The applicant in the instant
petition under section 482 Cr.P.C. is
aggrieved by the summoning order dated
30.1.2019 passed by Ist Additional
Session Judge, Ballia, in Complaint Case
No. 74 of 2018 (Shiv Bachan Vs.
Dhananjay), by which while taking
cognizance of the offences under Sections
354, 323, I.P.C and Section 7/8 Protection
of Children from Sexual Offences Act
2012, the learned Addl. Session Judge,
has summoned the applicant thereunder.

3. It reflects from the record that the
grand-father of victim Km. Sarika filed a
complaint (registered as Complaint Case
No. 74 of 2018) against the applicant
under Sections 354, 323, I.P.C and
Section 7/8 of the Act, 2012 alleging that
his grand daughter has been molested by
the applicant who is minor being aged
about 17 years. Learned Addl. Sessions
Judge after recording the statement of
complainant under Section 200 Cr. P.C.and
the witnesses under Section 202 Cr.P.C, has
summoned the applicant as indicated above.

4. Learned counsel for the applicant
has assailed the impugned summoning
order as well as the proceedings in the
aforesaid complaint case, on the following
grounds:

(a) that earlier a first information
report being Case Crime No. 100 of 2018 has
been lodged by the victim herself against the
applicant on 31.8.2018 and her statement
under Section 161 Cr. P.C. was also recorded
wherein she stated her age to be about 19
years. And just after 11 days of lodging the
aforesaid F.I.R, the grand-father of the victim
has filed the impugned complaint on
12.9.2018 mentioning the victim to be a
minor and a different version of the incident.

(b) that in Case Crime No. 100
of 2018 lodged by the victim herself,
charge-sheet has already been submitted
against the applicant under Sections 354
& 323 I.P.C., and