JUDGMENT Amar Saran, J.
1. This criminal revision has been filed for challenging the orders dated 6.2 2004 and 19 2.2004 passed by the Learned Additional Sessions Judge, Fast Track Court No. 3, Jhansi in S.T. No. 248 of 1999. By the order dated 6.2.2004 an application moved by the revisionist Govind Singh for summoning P.W, 10 Kalyan Singh for re-examination and another prayer, for summoning Shri Alok Kumar Verma, Additional Munsif Magistrate-II,- Jhansi, who has \ recorded the statements under Section 164 Cr.P.C. of Amarjeet Singh and Puran Singh have been refused. By the second order dated 19.2.2004 an application for summoning the two witnesses namely Amarjeet Singh and Puran Singh under Section 311 Cr.P.C has been rejected by the trial court.
2. I have heard Shri Kamal Krishna, learned counsel for the revisionist, Shri Braham Singh, learned counsel for the complainant and learned Additional Government Advocate.
3. This case has come up before me on nomination by the then Acting Chief Justice Hon'ble Mr. Justice M. Katju dated 14.10.2004. It could not be taken up earlier as 1 was sitting in a bench, I now proceed to decide the same.
4. The ground for dismissing the application for re-examining P.W. 10, Kalyan Singh in the order dated 6.2.2004 was that the sessions trial had been pending since 1999 and it appeared to the concerned court that the application has been moved only to delay the proceedings. Moreover, 164 Cr.P.C. statements of Amarjeet Singh and Puran Singh were not considered substantive evidence which could only have been used for contradicting an earlier statement of the witnesses under Section 145 of the Evidence Act. As Amarjeet Singh and Puran Singh had not been examined, hence there was no justification whatsoever for seeking to re-examine the Magistrate, Shri Alok Kumar Verma for proving the statements.
5. In my view, the trial court had rightly rejected the application on merits and also because it did appear to have been moved to delay the proceedings.
6. So far as the order dated 19.2.2004, refusing to summon Amarjeet Singh and Puran Singh, was concerned, it was observed in the order that on 12.12.2003 the statement of the accused under Section 313 Cr.P.C. had been recorded and 6.1.2004 was the date fixed for defence evidence. Thereafter the case was fixed for defence evidence on 19.1.2004, 6.2.2004 and 19.2.2004, but no defence witness was produced and only an application dated 19.1.2004 was moved for summoning Puran Singh and Amarjeet Singh. Summons were even issued for summoning Puran Singh, but a report was received that he was not residing on the address given. Thereafter an application was moved for summoning the Munsif Magistrate-Il, Jhansi, who had recorded the statements of Puran Singh and Amarjeet Singh, but that was turned down by the court by its earlier order dated 6.2.2004. Three days' time was granted to the defence to give the list of defence witness. This was not done but on 19.1.2004 the application was moved for summoning Amarjeet Singh and Puran Singh under Section 311 Cr.P.C. It therefore appeared to the court that in the application under Section 147B, no effort was made to give the correct address, hence the court concerned was of the view that the application No. 147 B had only been moved for the purpose of delaying of the proceedings and rejected it. I see no illegality in the trial court's rejection of this application also.
7. It may be noted that before this Court also the application No. 147-B for summoning Amarjeet Singh and Puran Singh has not been filed.
8. It has been pointed out by the complainant in the counter affidavit that the FIR was lodged on 22.7.1993. It does appear to this Court that the revisionist was has not cared to give the correct addresses of Puran Singh and Amarjeet Singh and this revision has been filed for summoning Puran Singh and Amarjeet Singh, only for delaying the proceedings of the trial in a case under Section 302 IPC, which has already seen considerable delay.
9. There is no force in the submission of the learned counsel for the revisionist that as in the statement under Section 164 Cr.P.C, Puran Singh had denied being a witness of conspiracy, hence it was essential to summon him. The 164 Cr.P.C. statement of Puran Singh has been filed before this Court. It categorically states that Puran Singh denies being a witness of conspiracy. He also states that he was being forced to become witness of conspiracy on gun point by the prosecution. Therefore it was for the trial Court to appraise whether any purpose would have been achieved by summoning this witness.
10. Sri Kamal Krishna has cited the case of Rahghunandan v. State of U.P., , In this case a witness Jailal had stated before the police that when he had come in the morning, long before 1 p.m., (the alleged time of incident) he had found the Sriram the deceased had already been murdered. This witness had been summoned under Section 540 Cr.P.C (311 under the new Code of Criminal Procedure). The Apex Court was of the view that this witness could have been examined with respect to his statement to the police in view of the plenary powers conferred on the court under Section 165 of the Evidence Act, as his affirmative statement to the police, if it were to be believed, would have affected the credibility of the other prosecution witnesses and the version deposed to by them. The Court observed thai the restriction under Section 162 Cr.P.C, that only prosecution witnesses could be cross-examined with respect to their earlier version did not apply to the court exercising powers under Section 165 of the Evidence Act. In the present case, the application under Section 311 Cr.P.C has been disallowed for adequate reasons as mentioned above. Also in his 164 Cr.P.C statement the witness Pooran had taken a stance of complete denial of his presence, hence apparently his statement therein could not have affected the version as deposed to by the other witnesses. For this reason also the argument of the learned counsel that if Pooran Singh was produced as a defence witness, he could not have been cross-examined in view of the proviso to Section 162 Cr.P.C which confers such a right only in respect of prosecution witnesses does not carry much weight, because as I have observed above, this witness was not giving a contrary version of the conspiracy, unlike Jailal-in the case of Raghunandan (supra), but his version was a version of complete absence at the time of conspiracy. Thus whether any adverse inference is to be drawn from his non-production, or whether it. was immaterial that he was not produced; are questions-which are to be decided by the trial court. The observations above have made by this Court only for the purpose of deciding this Criminal Revision and are not to affect the trial court's decision on merits
11. In this view of the matter, I find no illegality in the orders of the trial court dated 19.2.2004 and 6.2.2004. In. the result, the criminal revision is dismissed.
12. As the trial appears to have lingered on for a very long period of tune it is directed that the trial court shall decide the trial as expeditiously as possible.