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Neutral Citation No. - 2024:AHC:135839 Court No. - 78
Case :- APPLICATION U/S 482 No. - 27824 of 2024 Applicant :- Smt Kajal
Opposite Party :- State of U.P. and Another Counsel for Applicant :- Jitendra Kumar Counsel for Opposite Party :- G.A. Hon'ble Sanjay Kumar Pachori,J.
1. The present application under Section 482 of the Code of Criminal Procedure, 1973 has been filed to quash the order dated 10.08.2023 passed by Additional Sessions Judge, Court No. 15, Ghazaibad in Session Trial No. 332 of 2016 (State Vs. Rakesh), arising out of Case Crime No. 1760 of 2015, under Section 302 of I.P.C., Police Station- Indrapuram, District- Ghaziabad, whereby the applicant under Section 311 of Cr.P.C. has been moved by the PW-2 (daughter of the accused), has been rejected.
2. Brief facts of the case are that the application under Section 311 of Cr.P.C. has been filed by the PW-2 (daughter of the accused/ applicant) on 19.12.2023 for re-examination herself stating that she had given evidence due to undue pressure from her maternal grandfather which was not correct. The application is supported by an affidavit.
3. The trial court observed that the application in question has been filed for re-examination to make her turn hostile. PW-2 is the real daughter of the accused. The trial is at an advanced stage.
4. Learned counsel for the applicant fairly submitted that the sole accused Rakesh Singh is the father of the applicant. The prosecution examined PW-2 as an eyewitness of the incident.
5. Heard, Sri Jitendra Kumar, learned counsel for the applicant and Sri S.B. Maurya, brief holder for the State.
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6. In Dr. Rajesh Talwar and another Vs. C.B.I. and another, (2014) 16 SCC 628, the Supreme Court considered the issue of fair trial observing in Para 10, which is as under:-
"10. This Court in Selvi J. Jayalalithaa & Ors. v. State of Karnataka & Ors. (Writ Petition (Crl.) No.154 of 2013) decided on 30.9.2013, after referring to its earlier judgments in Triveniben Vs. State of Gujarat, AIR 1989 SC 1335; Zahira Habibullah Sheikh and Another Vs. State of Gujarat and others, AIR 2006 SC 1367; Capt. Amarinder Singh Vs. Prakash Singh Badal & Ors., (2009) 6 SCC 260; Mohd. Hussain @ Julfikar Ali v. State (Govt. of NCT of Delhi), AIR 2012 SC 750; and Natasha Singh Vs. CBI (State), (2013) 5 SCC 741, dealt with the issue of fair trial observing:
Fair trial is the main object of criminal procedure and such fairness should not be hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society. Thus, fair trial must be accorded to every accused in the spirit of right to life and personal liberty and the accused must get a free and fair, just and reasonable trial on the charge imputed in a criminal case. Any breach or violation of public rights and duties adversely affects the community as a whole and it becomes harmful to the society in general. In all circumstances, the courts have a duty to maintain public confidence in the administration of justice and such duty is to vindicate and uphold the 'majesty of the law' and the courts cannot turn a blind eye to vexatious or oppressive conduct that occurs in relation to criminal proceedings.
Denial of a fair trial is as much injustice to the accused as is to the victim and the society. It necessarily requires a trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. Since the object of the trial is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities and must be conducted under such rules as will protect the innocent and punish the guilty. Justice should not only be done but should be seem to have been done. Therefore, free and fair trial is a sine qua non of Article 21 of the Constitution. Right to get a fair trial is not only a basic fundamental right but a human right also. Therefore, any hindrance in a fair trial could be violative of Article 14 of the Constitution. xx xx xx xx
Article 12 of the Universal Declaration of Human Rights provides for the right to a fair trial what is enshrined in Article 21 of our Constitution. Therefore, fair trial is the heart of criminal jurisprudence and, in a way, an important facet of a democratic polity and is governed by rule of law. Denial of fair trial is crucifixion of human rights."
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7. Revert back to the present case, the application under Section 311 of Cr.P.C. has been filed by PW-2 (witness of the case), who is daughter of the applicant/ accused after recording her evidence as PW-2 to call herself for re-examination.
8. In view of the the facts and circumstances of the case, as PW-4 is a (daughter of the accused) and keeping in mind the settled position of law in Dr. Rajesh Talwar (supra) on this point, without going through the merit of the case, I am of the considered view that the present application u/s 482 Cr.P.C. deserves no merit and is liable to be dismissed and is, accordingly, dismissed.
Order Date :- 23.8.2024
Ishan