Court No. - 82
Case :- CRIMINAL REVISION No. - 2367 of 2021 Revisionist :- Sureshanand Giri Opposite Party :- State of U.P. and Another Counsel for Revisionist :- P.K. Singh,Pushkar Kushwaha Counsel for Opposite Party :- G.A.,Gyanendra Singh Kanaujiya
Hon'ble Ajai Kumar Srivastava-I,J.
Heard learned counsel for the revisionist, learned A.G.A. for the State, learned counsel for opposite party No.2 and perused the record.
The instant criminal revision has been filed by the revisionist for setting aside the order dated 02.09.2021 passed by learned Additional Sessions Judge, Court No.6, Mirzapur in Sessions Trial No.07 of 2007 (State vs. Naresh Giri), under Sections 147, 148, 149, 302 I.P.C., Police Station Lalganj, District Mirzapur and with a further prayer to permit the revisionist to produce the defense witness, Naresh Mahato S/o Ganga Mahato resident of Apara Bheda, Police Station Lalganj, District Mirzapur in the interest of justice.
It has been submitted by learned counsel for the revisionist that the closure of opportunity of producing defence witness, Naresh Mahato S/o Ganga Mahato vide impugned order dated 02.09.2021 amounts to miscarriage of justice because it adversely affects the valuable right of the revisionist to defend himself.
Learned counsel for the revisionist has further submitted that the concept of fair trial incorporates in its fold due opportunity of adducing defence witness by the revisionist so that the truth may be elicited.
Learned counsel for the revisionist has further submitted that in case, only one more opportunity is given to the revisionist, he would certainly produce the defence witness and get him examined expeditiously without seeking any further adjournment.
Per contra, learned A.G.A. for the State and learned counsel for opposite party No.2 have vehemently opposed the aforesaid prayer and have submitted that the aforesaid S.T. No.07 of 2007 being old, has been directed to be disposed of expeditiously and also in a time bound manner.
From the perusal of the impugned order, it is apparent that in application No.180B, it was prayed by the revisionist that the defence witness, Naresh Mahato has gone to Bihar and he was suffering from some ailment. Therefore, he could not be produced before the learned trial court on the date so fixed and the learned trial court keeping in view the fact that nature of ailment has not been described in the application as also the fact that the case is quite old, has closed the opportunity of cross examination.
As observed above, right of adducing defence in any trial is not only a valuable right of the accused but also it is a necessary component of the concept of fair trial. It is also note worthy that keeping in view the provision of Section 233(3) Cr.P.C., it is, otherwise, duty of the trial court to procure attendance of the defence witness through the process to be issued by the learned trial court, if necessity arises. In the instant case, the revisionist has himself expressed willingness to produce the defence witness, Naresh Mahato.
Therefore, in the facts of this case, the learned trial court ought to have afforded one more opportunity with a caveat that, in case the witness is not produced on the date so fixed it would be deemed to be a delaying tactics and in that event learned trial court would have been justified in closing the opportunity of defence. It, thus, appears that the learned trial court has erred in closing opportunity of defence by impugned order which is palpably illegal and deserves to be set aside.
In view of the aforesaid discussions, the instant criminal revision is allowed. The impugned order dated 02.09.2021 is set aside. Learned trial court is directed to fix a date for appearance/examination of aforesaid witness, Naresh Mahato who shall be produced by the revisionist positively on the date so fixed for getting him examined for expeditious disposal of aforesaid Sessions Trial No.07 of 2007.
It is made clear that no further opportunity for adducing such witness will be afforded to the revisionist.
Order Date :- 29.10.2021 cks/-