# Sanjeev Kumar & Ors v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2023) 4 ILRA 431
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-05
- **Case number:** Application u/s 482 No. 39616 of 2022
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjeev-kumar-ors-v-state-of-u-p-anr-opp-parties-49968
- **Pages:** 5

## Headnote

A. Criminal Law - Indian Penal Code,
1860-Sections 498A, 304B, & 302 - Dowry
Prohibition
Act,
1961-Section
3⁄4homicidal death-applicant no. 3 is in
hospital and due to this reason the
applicants were unable to lead defence
evidence-application moved to provide an
opportunity to lead the evidence was
rejected-the burden lies on the accusedapplicants to discharge their duty that
they have not committed dowry death,
therefore, the
production
of
defence
evidence is must and essential-Therefore,
only on this ground that the defence has
432 INDIAN LAW REPORTS ALLAHABAD SERIES
taken
few
dates
for
adducing
the
evidence, it would not be appropriate to
close the defence evidence-Learned trial
court started directing the defence to
make haste while there were some
compelling circumstances due to which
the accused persons could not produce the
defence
evidence-Hence,
there
is
no
reason to bypass the provisions of Ss. 232
and 233 Cr.PC and conviction recorded in
violation of this procedure renders the
conviction illegal.(Para 1 to 22)

The application is allowed. (E-6)
List of Cases cited:

## Text

4 All. Sanjeev Kumar & Ors. Vs. State of U.P. & Anr.
431

13. This Court is of the considered
view that in such a situation the concerned
court has right to dispose of the aforesaid
release application considering all the facts
and circumstances of the case and also as to
whether the applicant has been able to
establish the circumstances and grounds
enumerated in the later part of the Sub
Section (3) of Section 60 of the N.D.P.S
Act or not.

14. There is also a reference of
Section 207 of the M.V. Act that the vehicle
has been ceased under Section 207 of the
M.V. Act, for which the reports may be
obtained and a release application may be
moved before the concerned court or before
the concerned R.T.O and the fine amount
imposed (if any) under Section 207 of the
M.V. Act, may be deposited. So far as the
release of this vehicle as case property of
the related criminal case is concerned, in
absence of initiation of any confiscation
proceeding or order, the release application
can be dealt with under Chapter XXXIV of
the Code of Criminal Procedure.

15. On the basis of the above
discussion, this court is of the considered
view that the impugned order is liable to be
quashed.

O R D E R

16. This application under Section
482 Cr.P.C is allowed and the impugned
order dated 08.08.2022 is hereby quashed.
The learned Special Judge / A.S.J. (F.T.C) /
Special Judge (N.D.P.S Act) (Crime against
women), Budaun, is directed to decide the
release application moved by the applicant
earlier, afresh.

17. In view of this judgment, the
learned trial Court shall receive a recent
report as to whether any confiscation
proceeding has been started by the District
Magistrate, Budaun, or not or any order in
this regard has been passed or not. In case,
a report is submitted to the learned trial
court that a confiscation proceeding has
been started or any order with regard to
confiscation has been passed by the District
Magistrate, Budaun, this order for deciding
the release application afresh would not be
effective, otherwise the learned trial Court
shall
decide
the
release
application
exercising its power under Chapter XXXIV
of the Code of Criminal Procedure.
----------
(2023) 4 ILRA 431
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.01.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application u/s 482 No. 39616 of 2022

Sanjeev Kumar & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Sri Atharva Dixit, Sri Pranav Tiwary

Counsel for the Opp. Parties:
G.A.

A. Criminal Law - Indian Penal Code,
1860-Sections 498A, 304B, & 302 - Dowry
Prohibition
Act,
1961-Section
3⁄4homicidal death-applicant no. 3 is in
hospital and due to this reason the
applicants were unable to lead defence
evidence-application moved to provide an
opportunity to lead the evidence was
rejected-the burden lies on the accusedapplicants to discharge their duty that
they have not committed dowry death,
therefore, the
production
of
defence
evidence is must and essential-Therefore,
only on this ground that the defence has
432 INDIAN LAW REPORTS ALLAHABAD SERIES
taken
few
dates
for
adducing
the
evidence, it would not be appropriate to
close the defence evidence-Learned trial
court started directing the defence to
make haste while there were some
compelling circumstances due to which
the accused persons could not produce the
defence
evidence-Hence,
there
is
no
reason to bypass the provisions of Ss. 232
and 233 Cr.PC and conviction recorded in
violation of this procedure renders the
conviction illegal.(Para 1 to 22)

The application is allowed. (E-6)
List of Cases cited:
1. Sivamani @ Sivan Vs St. of Ker. (1993) CrLJ
23 DB

2. Parameswara Kurup Janardhanan Pillai Vs St.
of Ker. (1982) CrLJ 899 Ker-DB

3. N. Pishak Singh Vs St. of Manipur (2006) CrLJ
NOC 197

4. Manoj Kumar Swami Vs St. of U.P. (2006)
CrLJ 1781 (1782)
(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Shri Atharva Dixit, learned
counsel for the applicants and Shri Pankaj
Kumar Tripathi, learned A.GA. for the
State. Perused the material available on
record.

2.

By
this
application,
the
applicants have challenged the order
dated 21.11.2022 passed in Session Trial
No. 392 of 2009 (Stae Vs. Sanjeef
Kumar and others) arising out of Case
Crime No. 142 of 2009 under Section
498A, 304 B I.P.C. and Section 3/4 of
the D.P. Act, with an alternative charge
under Section 302 IPC Police Station-
Lanka, District- Varanasi and grant an
opportunity to the applicants to lead
their defence evidence.

3. In brief facts of the case are that the
aforesaid trial is going on in the Court of
Additional District Judge/ FTC Court No.
14th Finance Commission, Varanasi, on the
allegations that the daughter of the first
informant had solemnized her marriage
with the applicant no. 1 on 18.4.2006. The
applicants
demanded
dowry
and
administered poison to her due to which
she was hospitalised and ultimately died on
27.3.2009. After submission of chargesheet, the charges were framed and the trial
commenced. It is contended that seeing the
deteriorating condition of applicant no.3
Kusum Devi, she was kept under medical
observation and had been hospitalized for
treatment on 10.11.2022 and since then she
is in hospital and due to this reason the
applicants were unable to lead defence
evidence. The matter was lastly listed on
15.11.2022 for the defence evidence but
due to ill health of the applicant's counsel
an adjournment application before the
Court below was moved.

4. On 21.11.2022 an application was
moved to provide an opportunity to lead the
evidence of examining the defence witness.
However, the said application was rejected
in a mechanical and arbitrary manner by
order dated 21.11.2022 which is under
challenge before this Court on the ground
that the order has been passed in a very
perfunctory and malafide manner which is
against the principles of natural justice and
the right to fair trial. The trial is pending
since 2009 and the prosecution has
completed its evidence only in the year
2022. The prosecution has led its evidence
in a period of over 13 years. It is a case
under Section 304 B I.P.C. where statutory
presumption under Section 113B of the
Indian Evidence Act exists against the
accused persons which is rebuttable in
nature and it can be rebutted only by
4 All. Sanjeev Kumar & Ors. Vs. State of U.P. & Anr.
433
leading defence evidence. In absence of
any opportunity to lead the defence
witnesses, the defence would be deprived
of its right to rebut such presumption. The
learned Court below under undue haste is
not granting opportunity of defence and is
adopting two different parameters with
respect to the prosecution and the defence.
It has already been upheld in various cases
by the Apex court as well as different High
Courts that any person can be summoned or
recalled as a witness for examination at any
stage of the proceedings where it is
essential. All the applicants are on bail
pending trial, therefore, impugned order be
set-aside and an opportunity be granted to
the applicants to lead their defence
evidence.

5. The copy of the impugned order
and relevant papers have been annexed
with the petition.

6. By way of supplementary affidavit
dated 28.11.2022, the applicants have
produced the certified copy of the chick
FIR and the impugned order. By way of
supplementary affidavit no. 1/2022 copy of
the order-sheet and the questionnaire have
been filed.

7. Heard learned counsel for the
applicants and learned A.G.A. Perused the
record.

8. From perusal of the order-sheet it
transpires that the prosecution could not
conclude its evidence for a decade but after
recording statement under Section 313
Cr.PC., the case was fixed for production
of defence evidence. The learned Trial
Court started taking defence evidence. On
15.10.2022 and 19.10.2022, the learned
Trial Court awarded Rs. 500/- cost on the
adjournment of the accused-applicants and
granted opportunity to produce the defence
evidence on 5.11.2022 and 8.11.2022 and
lastly on 15.11.2022, he closed the defence
evidence and when recall application was
moved,
the
same
was
rejected
on
21.11.2022.

9. The learned counsel for the
applicants contends that under Section 113
B of the Evidence, the burden lies on the
accused-applicants to discharge their duty
that they have not committed the dowry
death, therefore, the production of defence
evidence is must and essential for ends of
justice.

Section 233 Cr.PC. is as under:

233. Entering upon defence. (1) Where
the accused is not acquitted under section
232, he shall be called upon to enter on his
defence and adduce any evidence he may
have in support thereof. (2) If the accused
puts in any written statement, the Judge
shall file it with the record.

10. In Several judicial precedence, it
has been held that proper opportunity for
adducing
defence
evidence
must
be
provided by the Court. The word 'shall' has
been used everywhere in section 233
Cr.P.C.

11. In Sivamani alias Sivan V. State
of Kerala, 1993 CrLJ 23 (DB), it has been
held that "there is no reason to bypass the
provisions of Ss. 232 and 233 Cr.P.C. and
conviction recorded in violation of this
procedure renders the conviction illegal."

12.

In
Parameswara
Kurup
Janardhanan Pillai V. State of Kerala,
1982 CrLJ 899 (Ker-DB), it has been held
that "an accused who was not acquitted
under S. 232 and not called upon to enter
434 INDIAN LAW REPORTS ALLAHABAD SERIES
upon his defence under this section, the
trial is in violation of the latter part of the
mandatory provision and is liable to be set
aside."

13. In N. Pishak Singh V. State of
Manipur, 2006 CrLJ (NOC) 197, it has
been held that "where the accused had
defence to make and wanted to examine
defence witness, failure on the part of the
Court to call upon the accused to enter
upon the defence caused prejudice to him
in his defence, his conviction on the charge
of murder was set aside."

14. As per the (Sub-sec. (3) of the
aforesaid Section, the accused may apply
for issue of process to compel attendance
of witnesses or production of documents
or things and the Judge, unless he
considers the application to be vexatious
or made for the purpose of delay or
defeating the ends of justice, shall issue
such process. The Judge should record
his reasons for refusal.

15. In this case, the trial Judge has not
concluded that the defence evidence is not
necessary or without adducing the defence
witnesses, the accused persons would be in
capacity to rebut the presumption under
Section 113 (b) of the Evidence Act.
Therefore, only on this ground that the
defence has taken few dates for adducing
the evidence, it would not be appropriate to
close the defence evidence. At least proper
opportunity must be provided to the
accused persons to adduce the evidence in
their defence.

16. In Manoj Kumar Swami V. State
of U.P., 2006 CrLJ 1781 (1782), it has
been held that "At the stage of defence the
accused has a right to summon any
evidence which may be relevant for proper
appreciation of the prosecution evidence
and to substantiate his defence".

17. From the perusal of impugned
order it appears that the learned trial Court
has passed the order in hurried manner. The
defence should have been provided at least
sufficient opportunity without counting the
dates. It is further revealed that the Trial
Judge had also taken note that the
prosecution was not taking the case
seriously otherwise it would have not taken
twelve years at the stage of prosecution
evidence.

18. On 11.10.2022 the statement of
the accused persons have been recorded
under Section 313 Cr.PC and from
15.10.2022 to 15.11.2022 the opportunity
to produce the defence evidence was
provided and just within a month the
defence evidence has been closed. If we
compare the time given to the prosecution
and the defence, the picture is very much
clear that just after recording the statement
under Section 313 Cr.P.C., the learned trial
Court started directing the defence to make
haste. From the perusal of grounds taken in
the recall application and in the present
application, it transpires that certainly there
were some compelling circumstances due
to which the accused persons could not
produce the defence evidence.

19. In the judicial precedents referred
to above, where the trial Court passed the
orders in a haste manner and did not
provide proper opportunity to adduce the
evidence in defence and convicted the
accused persons, such orders of conviction
have been set aside.

20.

Considering
the
overall
circumstances of the case and time
consumed by the prosecution this Court
4 All. Shiv Kumar Sharma Vs. State of U.P. & Anr.
435
concludes that the trial Court ought to have
adopted more liberal view towards defence
and they should have been provided
sufficient time for production of defence
evidence.

21. On the basis of above discussion
this Court is of the view that to prevent the
abuse of process and to secure the ends to
justice it is imperative for this Court to
intervene with the impugned order and to
allow the application.

Order

22. The application under Section 482
Cr.P.C. is allowed and the order dated
21.11.2022 passed in S.T. No. 392 of 2009
(State Vs. Sanjeet Kumar and Others)
arising out of Case Crime No. 142 of 2009
under Section 498A, 304 B I.P.C. and
Section D.P. Act, with an alternative
charge under Section 302 I.P.C. Police
Station- Lanka, District- Varanasi, is
hereby set aside. The learned Trial Court is
directed to provide sufficient opportunity to
adduce the defence evidence to the
accused-applicants for which this Court
thinks proper to provide at least 5 dates for
production of prosecution evidence. It is
further directed that the applicants shall not
move
any
unnecessary
adjournments.
Further, if any application for summoning
of the record or witnesses is moved, the
same shall be considered in view of the
above observations.

23. A copy of this order be sent to the
trial Court for compliance.
----------
(2023) 4 ILRA 435
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.03.2023

BEFORE
THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application u/s 482 No. 42663 of 2022

Shiv Kumar Sharma ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Omar Zamin, Sri Rohit Nandan Pandey

Counsel for the Opp. Parties:
G.A.

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Sections 202 & 482 -
Inherent
power
-
The
Negotiable
Instruments Act, 1881 - Section 118 -
Presumptions
as
to
negotiable
instruments - Section 138 - Dishonor of
cheque for insufficiency, etc., of funds in
the accounts - Section 139 - Presumption
in favour of holder , The general clauses
act, 1897 - section 27 - meaning of service
by post - service of notice has been
effected when it is sent to the correct
address
by
registered
post,
Indian
Evidence Act, 1872 - Section 114 - Court
to presume that in the common course of
natural events, the communication would
have been delivered at the address of the
addressee - when a notice is sent by
registered post and is returned with a
postal
endorsement
refused
or
not
available in the house or house locked or
shop closed or addressee not in station,
due service has to be presumed. (Para -
15, 16)

Complaint filed under Section 138 N.I. Act -
against applicant - alleging a demand for Rs.
1,25,000 for a partnership - opposite party
provided the same amount - but applicant
showed profit in 2014-15 - returned balance -
opposite party refused to pay - legal notice
through registered post - alleged to be not
accepted by applicant - applicant did not
return amount - Magistrate summoned -
Cheque was issued by applicant - towards
payments of debt or liability from an account -