Judgment 1. The petitioner has challenged the order dated 1.4.2003 passed by the Special Judge, C.B.I., Patna, in Special Case No.5 of 1998, rejecting his prayer to issue summon to Shri A. P. Dorai as a defence witness. 2. The petitioner is facing prosecution in the aforesaid case for the offences under section 13(2), read with 13(1) (c) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the Act). The said case was registered on 19.8.1998 with the allegation that the petitioner was found to be in possession of assets, disproportionate to his known source of income, worth Rs. 42,52,193/- approximately. The Police in the aforesaid case submitted charge-sheet on 4.4.2000 against the petitioner and his wife Rabri Devi and after cognizance trial proceeded. 3. The prosecution examined 132 witnesses and, thereafter, closed its case. Thereafter, the accused persons including the petitioner were examined under section 313 of the Code on 15.12.2001. Thereafter, in terms of the provisions contained in section 243(1) of the Code of Criminal Procedure (hereinafter referred to as the Code), which was amended/substituted by section 22 of the Act, the court below directed the accused to give in writing a list of the persons whom he proposes to examine as his witnesses and of the documents on which he proposes to rely. On 20.12.2001 the petitioner submitted a list containing the details of 22 documents to be called for and the names of 207 witnesses to be examined. From a perusal of the said list, it appears that one of the documents at serial no.8 was Dorai Commission report, which was to be called for from the Secretary, Parliament. In the list of the witnesses at serial no.96, the name of Sri A.P. Dorai, the then Director, R.P.F., New Delhi with file D.O. (P.T. 245/65/97 AVD (II) dated 1.8.1997, was given. A copy of the said petition has been annexed as Annexure A to the supplementary counter affidavit filed on behalf of the C.B.I. The C.B.I, filed a rejoinder to the said petition mentioning therein that the list of the witnesses is vague and does not indicate the points, on which the witnesses are to be examined and due to which the prosecution will be in dark and will be prejudiced in effective cross-examination and that the same has been made with a view to delay the trial. In paragraph no.9 of the said rejoinder, it has been said that the defence proposed to examine Secretary, Dorai Commission and Shri A.R Dorai, who are in no way connected with the facts of the case and have not done any official act in relation to this case. Thereafter, the court below by order dated 22.12.2001 directed the petitioner to furnish details by 24.12.2001 and, thereafter, a petition was filed on behalf of the petitioner on 24.12.2001 mentioning the names of the witnesses headwise (subjectwise) on which defence witnesses are to be examined. Under the head Lackadaisical, biased and illegalities in investigation, the names of six witnesses were mentioned to be examined including Mr. A.P.Dorai, who, as stated above, was shown at serial no.96 of the list of witnesses submitted on 20.12.2001. 4. Thereafter, the court considered the matter on 5.1.2002. The court below allowed the examination of 117 defence witnesses in total out of the list of 207 witnesses on different heads. It directed to select the persons of choice to be examined as witness on the point within total number of 117 witnesses. The relevant portion of the said order runs as follows :- "After careful consideration of the points, I find it just and proper that the number of witness required to be examined on the respective points by the defence will be in following order. They are directed to limit the number of witnesses on the respective points as stated below, in the order. They are at liberty to select the persons of their choice to be examined as witness on the points within the number given below." 5. The defence also filed a fresh tpetiion stating about the relevancy of the documents mentioned at serial nos. 1 to 21 in the earlier petition. The Special Judge by order of the said date rejected the prayer to call for documents at serial nos. 1 to 9. One of the documents was the report of Dorai Commission, which was to be called for from the Secretary, Parliament. 6. On 7.1.2002, the Special Judge directed the defence to submit a fresh list of witnesses and documents with the relevancy in the light of the earlier order dated 5.1.2002. On the same day i.e. 7.1.2002, the defence took time. 7. Thereafter, on 15.1.2002 afresh list of 115 witnesses, including the name of Sri A. P. Dorai, at serial no. 6. On 7.1.2002, the Special Judge directed the defence to submit a fresh list of witnesses and documents with the relevancy in the light of the earlier order dated 5.1.2002. On the same day i.e. 7.1.2002, the defence took time. 7. Thereafter, on 15.1.2002 afresh list of 115 witnesses, including the name of Sri A. P. Dorai, at serial no. 69, in terms of the earlier orders dated 5.1.2002 and 7.1.2002 was filed. The opposite party opposed the list of witnesses on the ground that five persons were new persons, who were not in the list of 207 witnesses. The court below after having considered the matter found that there was correction of names of two witnesses and there were only three fresh witnesses and, accordingly, allowed the prayer to examine the said two witnesses and so far as three new witnesses were concerned, who were at serial nos. 112,113 and 114, the court below ordered that the same may be examined after exhausting the list of the witnesses with the permission of the court. Thus, the court approved the list of 112 witnesses including Sri A. P. Dorai to be examined by defence in terms of earlier order. 8. It is stated that Mr. A. P. Dorai was one of the six witnesses, who were to be examined on the question of biased and irregular investigation. On 26.3.2003, the defence filed a petition to drop 25 witnesses out of the list of 115 witnesses submitted earlier on the ground that their examination will be only repetition. It gave the list of the witnesses to be dropped. It specifically mentioned in paragraph 6 of the petition that so far as Mr. A. P. Dorai, at serial no. 69 is concerned, his evidence is also necessary and a separate petition is being filed on behalf of the defence for summoning him and, accordingly, a petition for summoning Mr. A. P. Dorai was filed on the same date. The Special Judge on the same day accepted the prayer of the defence to drop 25 witnesses. 9. By the impugned order, the court below rejected the prayer of the defence to summon Mr. A.P. Dorai on the ground that he has rejected the prayer of the accused to call for the report submitted by Mr. A.P. Dorai on the ground of it being irrelevant for the case. 10. 9. By the impugned order, the court below rejected the prayer of the defence to summon Mr. A.P. Dorai on the ground that he has rejected the prayer of the accused to call for the report submitted by Mr. A.P. Dorai on the ground of it being irrelevant for the case. 10. The case of the petitioner is that he was made an accused in criminal cases, which are known as Animal Husbandry Scam cases and there the then Joint Director Dr. U. N. Biswas and S. P., C.B.I., Patna, Mr. V. S. K. Kaumadi acted in a biased manner and an enquiry was set up by the Parliament to enquire into the conduct of the C.B.I. Officials connected with the case with regard to requisition of Army for execution of non-bailable warrant of arrest against the petitioner. The enquiry was entrusted to Mr. A. P. Dorai, the then Director, R.P.F., New Delhi, who submitted a report on 1.8.1997, wherein he stated about the biased manner in proceeding against the petitioner and recommended action against them. Thereafter, the said officers of the C.B.I, due to grudge and biased attitude filed the present case. In other words, his case is that the disproportionate case is an outcome of personal grudge and biased attitude of the then Joint Director, C.B.I. Dr. U. N. Biswas and S.P., C.B.I., Animal Husbandry Cases, Patna, Shri V.S.K. Kaumadi and other officials of the C.B.I. During the course of cross-examination of Shri S. R. Majumdar, Dy. S. R, C.B.I., the main I.O., who was examined as P.W.131 and Shri V.S.K.Kaumadi, S.P. C.B.I., who was examined as P.W.132, questions were put to them showing the personal bias and grudge of the then Joint Director of C.B.I. and other C.B.I. officials. Sri Kaumadi admitted to have been examined by Sri Dorai. The questions put to the said witnesses have been quoted in paragraph 16 of the petition. According to the petitioner, examination of the aforesaid witness Shri A.P. Dorai is necessary to show biased and tainted investigation and the court below had allowed the said prayer by order dated 15.1.2002 and, accordingly, the rejection of his prayer by the impugned order to summon him is in violation of the earlier order of the court. 11. Learned counsel for the petitioner raised three points. 11. Learned counsel for the petitioner raised three points. First, he submitted that the examination of Shri A.P. Dorai is necessary to show that the present case was instituted because of personal grudge of the aforesaid C.B.I. officers and the investigation is biased. Secondly, he submitted that once the Court has allowed the prayer by earlier order dated 15.1.2002 to examine Shri A. P. Dorai, subsequently it cannot refuse such prayer. Thirdly, the provision of section 243(2) of the Code is imperative for the reason that if in terms of the provision contained in section 243(2) of the Code, read with section 22 of the Act, once the list of witnesses is supplied and the same is allowed by the trial court, then the court has to allow the prayer to examine the said witness in terms of section 243(2) of the Code unless the Court comes to the conclusion that the prayer made for examination is for the purpose of vexation or delay or defeating the ends of justice. The court below has not assigned any of the three reasons for rejecting the prayer for examination of Mr. A. P. Dorai. 12. Learned counsel for the opposite party, on the other hand, submitted that the petitioner with a view to delay the trial has made a prayer for examination of Mr. A. P. Dorai, who is not a relevant witness at all as he is in no way concerned with the investigation of the present case and the present case was registered after a year of the submission of the report of Mr. A. P Dorai. He further submitted that as the prayer of the petitioner to call for a report of Shri A. P. Dorai has been rejected, the court beiow has rightly rejected the prayer of the petitioner to summon Shri A. P.Dorai. 13. Before adverting to the submissions advanced at the Bar, it will be relevant to refer to the legal aspect of the matter with regard to calling for witnesses by the defence. There is no dispute that the trial in question is being conducted by following a procedure of warrant cases by the Magistrates. Section 243 of the Code deals with the evidence for defence, which runs as follows:- "243. Evidence for defence. There is no dispute that the trial in question is being conducted by following a procedure of warrant cases by the Magistrates. Section 243 of the Code deals with the evidence for defence, which runs as follows:- "243. Evidence for defence. (1) The accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record. (2) If the accused, after he had 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 cross-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. (3) The Magistrate may, before summoning any witness on an application under sub-section (2), require that the reasonable expenses incurred by the witness in attending for the purposes of the trial be deposited in Court." 14. According to sub-section (1) of section 243 of the Code, after close of the prosecution case, the accused shall be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record. Section 22 of the Act made the provision of the Code applicable to the trial with regard to the offences under the said Act with certain modifications. Sub-section (1) of section 243 of the Code has been modified/substituted by section 22(a) of the Act and the same runs as follows :- "22. Section 22 of the Act made the provision of the Code applicable to the trial with regard to the offences under the said Act with certain modifications. Sub-section (1) of section 243 of the Code has been modified/substituted by section 22(a) of the Act and the same runs as follows :- "22. The Code of Criminal Procedure, 1973 to apply subject to certain modifications.The provisions of the Code of Criminal Procedure, 1973(2 of 1974), shall in their application to any proceeding in relation to an offence punishable under this Act have effect as if, (a) in sub-section (1) of section 243, for the words "The accused shall then be called upon", the words "The accused shall then be required to give in writing at once or within such time as the court may allow, a list of the persons (if any) whom he proposes to examine as his witnesses and of the documents (if any) on which he proposes to rely and shall then be called upon" had been substituted." 15. Thus, sub-section (1) of section 243 of the Code stands substituted to the extent that instead of the accused shall be called upon to enter into defence, the accused, after close of the prosecution case, shall be required to give in writing at once or within such time as the court may allow, a list of the persons whom he proposes to examine as a witness and the list of the documents on which he proposes to rely and then he shall be called upon to enter upon his defence and produce his witnesses. 16. Section 243(1) of the Code read with section 22 of the Act was considered by the Apex Court in the case of Arivazhagan V/s. State, reported in 2000 Criminal Law Journal, Page 1714 and it was held that the very purpose of enacting section 22 is to curtail the delay in disposal of corruption cases and it empowered the court to curtail number of the witnesses. The court is to ask the accused to furnish the list of witnesses and the list of documents before the accused is called upon to enter upon defence so that the court may peruse the list and delete the names of the unnecessary witnesses, who have been inserted with a view to delay the disposal of the trial. The court is to ask the accused to furnish the list of witnesses and the list of documents before the accused is called upon to enter upon defence so that the court may peruse the list and delete the names of the unnecessary witnesses, who have been inserted with a view to delay the disposal of the trial. In this connection, it is relevant to quote paragraphs 16 and 17 of the judgment, which run as follows:- "16. It is thus noticeable that one of the main objects sought to be achieved through insertion of Section 7-A was speedy trial for cases relating to the problem of corruption. When we read Section 22 of the P.C. Act which requires a particular procedure to be followed relating to the filing of list of witnesses and documents for the defence, it must be borne in mind that the legislative intent for the aforesaid change in the procedure is mainly for achieving expeditiousness of the trial. It is true that the concept of speedy trial must apply to all trials, but in the trials for offences relating to corruption the pace must be accelerated with greater momentum due to a variety of reasons. Parliament expressed grave concern over the rampant ever growing corruption among public servants which has been a major cause for the demoralisation of the society. When corrupt public servants are booked they try to take advantage of the delay proned procedural trammels of our legal system by keeping the penal consequences at bay for a considerable time. It was this reality which impelled the Parliament to chalk out measures to curb procrastinating procedure clues. Section 22 of the P.C. Act is one of the measures evolved to curtail the delay in corruption cases. So the construction of Section 243 (1) of the Code as telescoped by Section 22 of the P.C. Act must be consistent with the aforesaid legislative intent. 17. The purpose of furnishing a list of witnesses and documents to the Court before the accused is called upon to enter on his defence is to afford an occasion to the Court to peruse the list. 17. The purpose of furnishing a list of witnesses and documents to the Court before the accused is called upon to enter on his defence is to afford an occasion to the Court to peruse the list. On such perusal, if the Court feels that examination of at least some of the persons mentioned in the list is quite unnecessary to prove the defence plea and the time which would be needed for completing the examination of such witnesses would only result in procrastination, it is the duty of the Court to short list such witnesses. We may also add that if the Court feels that the list is intended only to delay the proceedings, the Court is well within its powers to disallow even the whole of it." 17. Sub-section (2) of section 243 of the Code makes it imperative upon the court to issue process for calling the defence witnesses unless it considers that the prayer made is vexatious and has been made with a view to delay or for defeating the ends of justice. 18. Provision of section 257 of the Code of Criminal Procedure, 1898 is the corresponding provision of section 243 of the Code. The said provision was considered by the Federal Court in the case of Sudhir Kumar Dutt V/s. The King reported in A.I.R. (36) 1949 Federal Court 6. In paragraph 17, it was held that the language of the section is imperative and the trial Court has no discretion under it to refuse to issue process to compel the attendance of any witness cited by the accused after he has entered upon his defence, unless it is of the opinion that the application should be refused for any of the reasons which are specified in the section and which it is bound to record. As the defence was not afforded opportunity in that case, the matter was remanded and, thereafter, the High Court again considered the matter and convicted the accused. 18. As the defence was not afforded opportunity in that case, the matter was remanded and, thereafter, the High Court again considered the matter and convicted the accused. 18. The same case after conviction was considered by a Constitution Bench of the Apex Court in the case of Ronald V/s. State of West Bengal, reported in A.I.R. 1954 S.C. 455, and it was held that the accused cannot be convicted without an opportunity being given to him to present his evidence and if it is denied to him, there is no fair trial and conviction cannot stand and, accordingly, the conviction was set aside. 19. Thus, in terms of section 243 of the Code, the settled law is that once the prosecution case is closed and accused is examined under section 313 of the Code, the accused will be called upon to enter upon his defence, produce his evidence and section 243(2) of the Code makes it imperative upon the court to call for the witnesses unless it finds that the prayer has been made for the purpose of vexation or delay or defeating the ends of justice. 20. So far as the cases under the P.C. Act are concerned, only difference in view of the provision contained in section 22 of the Act is that the court will call upon the accused to give a list of witnesses to be examined and the list of the documents to be called for, but once the court accepts the number of witnesses to be examined and documents to be called for, thereafter sub-section (2) of section 243 of the Code is attracted and the court has to allow the prayer as the word is shall unless the court considers to reject the prayer on the aforesaid three grounds but in case of rejection on the aforesaid grounds, the court has to record special reasons. 21. Speedy trial is the cardinal rule of criminal jurisprudence. Under the P.C. Act, provision has been made under section 7 A of the Act for speedy trial to prevent delay in trial. However, the accused should be afforded a reasonable opportunity to adduce evidence in defence and this aspect of the matter is covered by section 243 of the Code, read with section 22 of the Act. Under the P.C. Act, provision has been made under section 7 A of the Act for speedy trial to prevent delay in trial. However, the accused should be afforded a reasonable opportunity to adduce evidence in defence and this aspect of the matter is covered by section 243 of the Code, read with section 22 of the Act. If an accused makes an allegation that the informant or the prosecution agency was guilty of mala fide or having animus against the accused and wants to lead evidence on the same, then the Court on being primafacie satisfied about the materials may permit the accused to lead evidence on the said point. However, it is well-settled that the allegation of mala fides cannot be a ground for quashing the prosecution, but it is a relevant fact while judging the correctness of the allegation or while examining the evidence at the time of trial. (See State of Maharashtra V/s. I.P. Kalpatri, reported in A.I.R. 1996 S.C. 722, paragraph 22). 22. In this case, the petitioner has alleged mala fide against some of the officers of the C.B.I. as stated above. During cross-examination of prosecution witnesses,questions were also put in and the Court having considered the same has allowed the prayer to examine Mr. A. P. Dorai as one of the witnesses on the point of tainted investigation by order dated 5.1.2002, read with order dated 15.1.2002. Thus, the Court was satisfied that an opportunity should be given to the accused to examine the aforesaid witness on the aforesaid point. Though, the Court has aiso rejected the prayer to call for the report submitted by Mr. A. P. Dorai, but that does make any difference because the court below has allowed the prayer of the defence to summon Mr. A.R Dorai along with relevant records. 23. No doubt, under the Code, the court below has no power to review its order but that applies in cases where the orders are of final nature. So far as the interlocutory orders passed during the progress of the trial are concerned, the Court can modify or recall the order on valid grounds according to the facts situation of the case for doing justice between the parties. As such, it cannot be said that in no case the court, once passed the orders for summoning the witnesses, can recall or modify the order. As such, it cannot be said that in no case the court, once passed the orders for summoning the witnesses, can recall or modify the order. Accordingly, the first submission raised on behalf of the petitioner is rejected. 24. The trial court has not assigned any reason as to why it decided to recall its earlier order. Even assuming, as stated above, that the Court can review its earlier order, the court has to recall the previous order on some valid grounds or on any of the grounds as mentioned in section 243 of the Code, read with section 22 of the Act. 25. Learned counsel appearing for the petitioner during the course of argument submitted that though a list of 115 witnesses was given and accepted by the court below, but he dropped 25 witnesses with a view to avoid delay in disposal of the case and the prayer was made to summon Sri A.R Dorai for the reason that he is the only witness on the point of biased investigation and as such there was no attempt on the part of the accused persons, including the petitioner to delay the trial nor can it be said that the prayer made on behalf of the defence was vexatious or the same was made with a view to defeat the ends of justice, on the other, the prayer was made to advance cause of justice. 26. Learned counsel appearing for the opposite party. on the other hand, drew our attention to.some documents to show that in a petition filed by the petitioner, an averment was made that the accused would not examine any witness. 27. In my view, the trial court has not considered the aforesaid aspect of the matter and has not given any of the grounds as mentioned in section 243(2) of the Code for rejecting the prayer of the petitioner nor has it assigned any reason as to what necessitated to recall the earlier order dated 5.1.2002, read with order dated 15.1.2002. Therefore, the order of the court below is vitiated on account of the aforesaid legal infirmities and, accordingly, the same is set aside and the court below is directed to consider the question in the light of the provisions contained in section 243 of the Code, read with section 22 of the Act and in the light of the observations made above. 28. 28. In the result, this application is allowed and the impugned order dated 1.4.2003 passed by the Special Judge, C.B.I., Patna, in Special Case No.5 of 1998 is quashed and the matter is remitted for fresh consideration.