- (1.) Applicant Vinod Kumar Singh, in this 482 application, is aggrieved by the impugned order dated 6.4.2010, passed by VIth Additional Session's Judge, Allahabad in S.T. No. 40 of 2002, State Vs. Smt. Menka Singh and others, by which trial judge, while exercising powers u/s 311 Cr.P.C., has rejected applicant's prayer for re summoning the investigating officer, PW7 and re- examine him, as in applicant's opinion trial judge has committed both misfeasance and non-misfeasance in passing the impugned order and has wrongly negated applicant's prayer. The grounds on which applicant prayed for recall of investigating officer was mentioned in the application, Annexure No.1, which was moved by the Public Prosecutor on 28.1.2010. Before adverting to the merits and de merits of instant Application, it is essential to have a search light on the back ground facts, a resume of which is sketched below.
(2.) One Virendra Singh, a clerk in criminal appeal section of this court, was murdered in the intervening night between 14th /15th August 2001, in House No. 715-A, Dariabad, P.S. Atarsuiya, district Allahabad. In connection with husband's, murder wife Menka Singh approached Senior Superintendent of Police, Allahabad, on17.10.2001, through an application, annexure no. 5, penning down therein that, in the night of the incident, one Lavlesh Singh alias Raju s/o Sada Shiv Singh, r/o Kapsethi, Karvi, district Chitrakoot, had come to her house at 2 a.m. and had knocked the door which then was opened by Menka Singh. Although aforesaid Lavlesh Singh alias Raju was going to solemnise marriage with her younger sister but he had an evil voluptuous design and infatuation for Menka Singh. He had informed her that he will keep her with him either in this world or in the next world.
(3.) Murder crime was investigated and after conclusion of it widow Menka Singh and two other persons were charge sheeted and their trial proceeded as aforesaid Session's Trial. In the trial investigating Officer was examined as P.W. 7 and after his evidence was over he was discharged. After closure of entire prosecution evidences, applicant informant desired to get the said investigating officer re-summoned and re- examined u/s 311Cr. P.C. and for that end he moved an application before the trial Judge but his prayer was disallowed, as trial judge rejected his application u/s 311 Cr.P.C. vide order dated 25.7.2009.In Criminal Misc. Application No. 19311 of 2007, applicant challenged said rejection order u/s 482 Cr.P.C. before this court. Subsequently, for the same prayer, applicant made a second application before the trial judge but his second endeavour also metted with the same fate, as trial judge, for the second time also , rejected applicant's prayer u/s 311 Cr.P.C. and did not summon the I.O. vide order dated 3.8.2007. Being dissatisfied by this second order also, applicant approached this court in second 482 Cr. P.C. Applications 19731 of 2009. Both the aforesaid 482 Cr. P.C. Applications came up before me and vide order dated 18.11.2009 (Annexure No. 6 ), it, both were disposed off by observing that there was no error in both the impugned orders. In Annexure No. 6, it was mentioned as follows:- "After hearing learned AGA in opposition, I do not find any illegality being committed by the trial Judge in passing the impugned order dated 3.8.2007, which has been challenged in Criminal Misc. Application No. 19311 of 2007, by which the trial Judge has rejected the prayer of the informant applicant to summon the I.O. for re-examination. It is recollected that the I.O. has been examined as P.W. 7 in the concerned S.T. No. 40/02. The trial Judge has rejected the same prayer on 25.7.2009, which has been challenged in another Criminal Misc. Application No. 19731 of 2009. Both the impugned orders, in both the criminal misc. applications, do not suffer from any error of law or that of fact. The apprehension of the informant that the I.O. was in collusion of the accused is without any basis.";