Court No. - 66
Case :- APPLICATION U/S 482 No. - 28214 of 2019
Applicant :- Ram Charitra Singh
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Rajiv Lochan Shukla
Counsel for Opposite Party :- G.A.,Ganesh Shanker Srivastava,Ram Dular
Hon'ble Rajul Bhargava,J.
Heard Sri Rajiv Lochan Shukla, learned counsel for the applicant, Sri Ganesh Shanker Srivastava, learned counsel for the opposite party no. 2 and learned A.G.A.
The present application u/s 482 Cr.P.C. has been filed for quashing the impugned order dated 17.4.2019 passed by learned Sessions Judge, Basti in S.T. No. 93 of 2018 (State vs. Ram Charitra Singh and others), Case Crime no. 57 of 2018, u/s 302 I.P.C., P.S. Dubaoliya, District Basti to the extent whereby the learned court below has refuse to summon witnesses Sri Kumar Singh, Jai Prakash Singh and the Emergency Medical Officer, who had pronounced the deceased Devendra Pratap as brought dead on 17.3.2018 in defence as defence witnesses.
Learned counsel for opposite party no. 2 states that he does not propose to file any counter affidavit inasmuch as simple question of law as to whether a prosecution witness, who was interrogated and cited as witnesses in the charge-sheet during investigation, was discharged during trial, can be examined as defence witness or not.
Learned counsel for the applicant submits that after examination of accused u/s 313 Cr.P.C. an application was moved u/s 233 Cr.P.C. for leading defence evidence with a prayer to issue summon to witnesses as mentioned in the Application No. 54-kha; the said application was in respect of summoning same defence witnesses, who were cited as witnesses in the charge-sheet and remaining three were government officials; the court vide impugned order dated 17.4.2019 partly allowed the application and refused to issue summon to witnesses Sri Kumar and Jai Prakash on the ground that both the witnesses have been cited in the charge-sheet and prosecution has chosen not to examine them and were discharged during trial and now defence cannot examine these witnesses. Thereafter, on the next date fixed on 8.5.2019 one of the defence witnesses Sri Kumar was present in the court and an application was moved in this behalf for examination said defence witness, the court vide impugned order dated 8.5.2019 rejected the application on the ground that though the witness is present in the court yet as the court already rejected the Application No. 54-kha vide order dated 17.4.2019, the said witnesses cannot be examined as defence witnesses by the court. For ready reference, Section 233 Cr.P.C. is quoted 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.
(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.
It has been argued by counsel for the applicant that admittedly in the present case the accused was not acquitted u/s 232 Cr.P.C. and thus he was called upon to enter on his defence and adduce any evidence he may have in support thereof. In the event, the accused applies for issue of process for compelling of attendance of witness the court shall issue such process unless he considers for the reasons to be recorded that such application should be rejected on the ground that it has been moved for the purpose of vexation or delay or for defeating the ends of justice, therefore, in view of specific embargo u/s 233(3) Cr.P.C. except on the aforesaid three grounds as stated therein the learned Judge would not reject the application for summoning defence witnesses. It has been argued that in the present case trial Judge rejected the application to summon defence witnesses Sri Kumar and Jai Prakash without giving any cogent and plausible reasons and same has been rejected simply on the ground that both defence witnesses have been cited in the charge-sheet and were discharged by the prosecution. It is argued that reasons given by the trial Judge in rejecting the application for summoning the aforesaid witnesses that they were cited as prosecution witnesses in the charge-sheet cannot be examined as defence witness, is totally whimsical and is not sustainable in the eyes of law. He has further argued that in a case where a witness is sought to be examined as defence witness has already been examined by the prosecution can not be examined as defence witness u/s 233 Cr.P.C. but in the present case situation is totally different. There is no law or any precedent, which prohibits the prosecution witness cited in the charge- sheet and discharged during trial for any reason whatsoever cannot be examined as defence witness. The court is bound to issue process for compelling attendance of any such witness, it may be a different matter that the court may disbelieve these defence witnesses in view of any statement made by them u/s 161 Cr.P.C. before the I.O. supporting the prosecution case and now for any extraneous consideration or to divert the truth they appear as defence witness, the appreciation should be left to the wisdom of the trial court. In my considered opinion, the refusal to examine defence witness can only be made when the accused applies for issue of process for compelling attendance of witness for the purpose of vexation or delay or defeating ends of justice, however, on none of the aforesaid grounds the application for examining defence witness Sri Kumar and Jai Prakash has been rejected.
The present application stands allowed. The impugned order dated 17.4.2019 is wholly unjustified and unsustainable in the eyes of law and is hereby quashed.
In view of the fact that though the trial is not very old, however, this Court had directed the court below to expedite the trial on day to day basis. In view of it, the trial court shall pass appropriate order on the application if moved by the applicant for issue of process for compelling the attendance of defence witnesses for recording their evidence and shall afford full opportunity to prosecution to cross examine them without granting any undue adjournment in the trial to either parties.
Order Date :- 30.7.2019 Dhirendra/