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2001 DIGILAW 661 (RAJ)

Chena Ram v. State of Rajasthan

2001-04-19

H.R.PANWAR

body2001
JUDGMENT 1. - This Misc. Petition under Section 482 Cr.PC. has been filed by the accused-petitioner Chena Ram against the order dated 9th April 2001 passed by the learned Special Judge, N.D.P.S. Cases, Hanumangarh, whereby the learned Trial.Court rejected the application filed by the accused petitioner for summoning one Jassa Ram as defence witness. The accused petitioner is facing trial before the learned Special Judge, N.D.P.S. cases Court, Hanumangarh for the offences under section 8/15 of N.D.P.S. Act. 2. Heard learned counsel for the petitioner and learned public prosecutor. Perused the order impugned. 3. In the instant case, the Sessions case was posted for final arguments and at that stage the accused petitioner filed an application to lead the defence evidence and for that purpose he requested the learned Trial Court by an application to summon witness one Jassa Ram as defence witness which was rejected by the impugned order on the ground that facts mentioned in the application are incorrect. It is contended by the learned counsel for the petitioner that the prosecution examined one Ramji Lal as prosecution witness (RW. 11) and in his statement, he in clear terms deposed that Ex. P-23 bears "A to B" signatures of Jassa Ram who was at the relevant time under training with him. This witness has further said that Ex. P-24 also bears the signatures of Jassa Ram. According to the learned counsel for the petitioner that this being the factual position and the witness Jassa Ram is material witness for the defence and, therefore, by refusal of summoning this witness will prejudice the interest of accused petitioner. He filed the certified copy of the statement of P.W. 11 Ramji Lal. 4. The right of the accused to produce the witness in his defence is absolute. The accused has a valuable right to produce evidence in his defence and for that purpose he has legal right to request the trial court for summoning of the witness. Sub-section (2) of Section 243 of Cr.PC. 4. The right of the accused to produce the witness in his defence is absolute. The accused has a valuable right to produce evidence in his defence and for that purpose he has legal right to request the trial court for summoning of the witness. Sub-section (2) of Section 243 of Cr.PC. provides-"If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers 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 and such ground shall be recorded by him in writing :Provided that when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of Justice." 5. The learned Trial Court in his order impugned has no where mentioned or stated that the application for summoning the defence witness has been made by the accused petitioner for the purpose of vexation or delay or for defeating the ends of justice. Accused petitioner Chena Ram is presently lodged in jail at Hanumangarh and therefore, when the accused petitioner is in jail, it cannot be inferred that the application for summoning the defence witness has been made for the purpose of vexation, or delay of the trial or for defeating the ends of justice. 6. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. It is also settled law that powers conferred on the Court should be exercised judiciously and not capriciously or arbitrarily and improper or capriciously exercise of powers may lead to undesirable results. In order to ensure fair and impartial trial to the accused, the same facilities of summoning the witnesses as provided to the prosecution should also be conferred to the accused. In order to ensure fair and impartial trial to the accused, the same facilities of summoning the witnesses as provided to the prosecution should also be conferred to the accused. Further it is incumbent upon the Court to take due care and caution while exercising the power so that no serious prejudice is caused to the prosecution or to the accused or to give unfair advantage to the rival side. 7. In the peculiar facts and circumstances of the case, I am of the considered opinion that learned Trial- Court has committed illegality in refusing to summon the defence witness merely on hyper technical reasons. To secure the ends of justice, I consider it just and proper to allow this Misc. Application. In view of the aforesaid discussion, I consider it just and proper to allow this Misc. Petition and the order dated April 9, 2001 passed by the learned Special Judge, N.D.P.S. Cases, Hanumangarh is hereby quashed and set aside and I direct the learned Trial Court to summon the witness named by the accused-petitioner.Petition allowed - Witness directed to be summoning. *******