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2004 DIGILAW 1745 (RAJ)

Lalit Vaishnav v. State of Rajasthan

2004-12-07

H.R.PANWAR

body2004
Judgment H.R. Panwar, J.-This criminal revision petition under Section 397/401 CrPC is directed against the order dated 111.2004 passed by the Additional Sessions Judge (Fast Track) No. 1, Udaipur (for short, “the trial Court” hereinafter) in Sessions Case No. 20/2003, whereby the application filed by the accused-petitioner for calling defence witnesses through the process of Court has been partly allowed and the trial Court directed to summon the defence witness Nos. 1, 2, 8 and 9 by issuing process through the Court; however, for the remaining witnesses, the trial Court directed the accused-petitioner to produce the said witness at his own. Aggrieved by the impugned order of the trial Court refusing to summon all the witnesses by issuing Court process, the petitioner has filed the instant revision. 2. I have heard learned Counsel for the petitioner and the learned Public Prosecutor for the State and perused the order impugned. 3. The accused-petitioner is facing trial for the offences punishable under Sections 302 and 201 IPC. After conclusion of prosecution evidence, the accused made statement under Section 313 CrPC and expressed his desire to produce the evidence in defence. He had filed a list of 11 witnesses sought to be summoned by issuance of process of the Court. Without assigning any reason, the trial Court partly allowed the application and directed to summon some of witnesses, i.e., witnesses Nos. 1, 2, 8 and 9, cited in the list of witnesses, through process of the Court. No reasons have been assigned as to why the other witnesses named in the list of witness be not summoned through process of the Court. Section 233 of the Code reads 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.” 4. The trial Court, in the impugned order, has not assigned any reason whatsoever for not summoning all the defence witnesses through process of the Court. In the circumstances, therefore, the order of the trial Court refusing to summon the remaining defence witnesses mentioned in the list of witnesses, deserves to be set-aside. 5. Consequently, the impugned order is modified to the extent that the witnesses mentioned in the list of witnesses filed by the accused-petitioner be also summoned through the process of the Court for the next date of hearing. At the first instance, the witnesses be summoned by bailable warrant and if despsite execution of the bailable warrant, the witnesses fail to turn up then it will be open for the trail court to summon the witnesses by non-bailable warrants. As the matter is an old one, the trial Court may fix the matter at a short date. 6. With these observations the revision petition stands disposed of .