Neutral Citation No. - 2025:AHC:26801 Court No. - 71 Case :- APPLICATION U/S 528 BNSS No. - 2905 of 2025 Applicant :- Smt Triveni Opposite Party :- State Of Up Through Principle Secretary (Home) Up At Lucknow & Another Counsel for Applicant :- Mayank Singh Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. 1. Heard Mr. Mayank Singh, the learned counsel for applicant and the learned A.G.A. for State. 2. Perused the record. 3. Applicant-Smt Triveni, who is a charge sheeted accused, has approached this Court by means of present application under Section 528 BNSS with the following prayer:- "It is therefore, most respectfully and humble prayed that this Hon'ble Court may kindly be pleased to allow the application dated 12.11.2024 U/s 348 B.N.S.S.,2023 & also to quash the order dated 12.11.2024(An.No.3) passed by Sessions Judge Court, Agra U/s 302,201 IPC, P.s. Achhnera, District Agra in ST.No.285/2020, case Crime No.360/2019, P.s. Achhnera, District Agra. And/or to pass any other and further orders which this Hon'ble Court may deem fit and proper." 4. Learned counsel for applicant submits that during pendency of aforementioned trial an application dated 12.11.2024 under Section 311 Cr.P.C. was filed by accused applicant before Court below on the ground of three important questions could not be put to the witness PW-6 Smt. Maya Devi. The questions proposed to be put to the witnesses were also detailed in the application. However, Court below in ignorance of the observations made by the Apex Court in Varsha Garg Vs. State of M.P. & Ors. 2022 SCC Online SC 986, has rejected the aforementioned application. Considering the nature and gravity of offence and also the relevancy of the questions proposed to be put to the witnesses, it is thus urged by the learned counsel for applicant that Court below has erred in law in rejecting the aforementioned application. As such, the order impugned by means of present application cannot be sustained and is liable to be set aside by this Court. 5. Per contra, the learned A.G.A. for State-opposite party-1 has opposed the present application. He submits that the order impugned in present application is perfectly just and legal. With reference to above, the learned A.G.A. contends that questions 1 and 2 proposed to be put to the witnesses i.e. PW-6 are wholly irrelevant inasmuch as under the provisions of the evidence act, an affidavit is not to be treated as evidence. Therefore, the recital if any occurring in the affidavit is of no consequence. So far as the third question proposed to be put to the witness is concerned, the learned A.G.A. contends that the same relates to a negative fact and the same can be deduced from the cross examination of PW-3 as a witness is required to prove a positive fact. He, therefore, contends that in view of above, no illegality can be said to have been committed by Court below. Apart from above, when the veracity of application dated 12.11.2024 filed by accused-applicant before Court below is examined in the light of the parameters laid down by the Apex Court in Raja Ram Prasad Yadav Vs. State of Bihar and Another (2013) 14 SCC 461, it cannot be said that the bona- fide of the applicant in filing the aforesaid application is writ large. It is thus urged by the learned A.G.A. that no interference is warranted by this Court in present application. 6. When confronted with above, the learned counsel for applicant could not overcome the same. 7. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon perusal of record, this Court finds that the objections raised by the learned A.G.A. in opposition to this application are not only borne out from the record but furthermore the same could not be dislodged by the learned counsel for applicant with reference to the record. In view of above, no good ground exists to entertain the present application. 8. As a result, the present application fails and is liable to be dismissed. 9. It is, accordingly, dismissed. Order Date :- 20.2.2025 Imtiyaz Digitally signed by :- IMTIYAZ AHMAD High Court of Judicature at Allahabad