Research › Search › Judgment

Rajasthan High Court · body

2007 DIGILAW 740 (RAJ)

Bharat Kumar v. U. O. I. Through CBI

2007-04-10

GOPAL KRISHNA VYAS

body2007
JUDGMENT 1. - The petitioners are facing trial for alleged offences under Sections 420/1208, 467, 468 and 471, I.P.C. in Criminal Case No. 4/2001 (1/1988) since the year 1982. It is submitted by learned counsel for the petitioners that the trial Court closed prosecution evidence by its order dated 24.11.2006 and, thereafter, statements of the petitioners under Section 313, Cr.P.C. were recorded. Thereafter, the case was fixed for the evidence of the defence. 2. It is submitted that the petitioners moved application under Section 243, Cr.RC. alongwith list of witnesses and prayed for summoning the witness Punupal. The trial Court, however, rejected the application vide the impugned order dated 22.03.2007. 3. Learned counsel for the petitioner submits that the trial Court observed in the impugned order that two opportunities on 08.03.2007 and 21.03.2007 have been given to the petitioner to lead evidence in defence and, therefore, refused to accept the application for summoning other witnesses in defence. It is vehermently contended by learned counsel for the petitioner that for last 22 years, the petitioner is facing trial and prosecution evidence was closed only by order dated 24.11.2006 and, thereafter, only after providing opportunity on two dates, on the application of the petitioner under Section 243, Cr.PC., the trial Court refused to grant petitioner's prayer for summoning other witness in defence. It is contended by learned counsel for the petitioner that the trial Court has rejected the application in contravention of the principle of natural justice and the proposition enunciated by the apex Court in a -recent judgment reported in 2007 (1) WLC (SC) Cri. 239, in the case of Kalyani Baskar v. M.S. Sampornam . 4. I have perused the cited judgment. Their Lordships of the Supreme Court have observed in the said judgment as follows : The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. 'Fair trial' includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and courts should be jealous in seeing that there is no breach of them." 5. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and courts should be jealous in seeing that there is no breach of them." 5. Referring to the provisions of Section 243, Cr.P.C., learned counsel for the petitioner argues that the opportunity to lead defence evidence is a right created under the statute and, in this case, only on two dates, as aforesaid, opportunity to lead defence evidence was given. According to the learned counsel, therefore, - the-application has been rejected by the trial Court erroneously without application of mind. 6. Mr. Panney Singh, learned counsel for the non-petitioner Union of India vehemently opposed the prayer and stated that the petitioners have filed application only to delay the trial. 7. I have given my thoughful consideration to the rival submissions. In my opinion, in the facts and circumstances of the case, the order impugned passed by the learned trial Court is not fair and sounds to reflect denial of opportunity to lead evidence. The Court cannot be oblivious to important aspect of the justice delivery system that justice must not only be done, it must appear to have been done. The order passed by the trial Court is not proper. The trial Court is required to act in all fairness when obviously, after initiation of the proceedings, the prosecution evidence has only been closed on 24.11.2006 and the defence was allowed two dates on 08.03.2007 and 21.03.2007 for adducing evidence. 8. In this view of the matter, the petition is allowed. Order impugned dated 22.03.2007 is set aside. Application filed by the petitioner under Section 243, Cr.PC. is allowed. Trial Court is directed to issue summons to the witness named in the application filed by the petitioner. In respect of private persons, summonses be given 'dastl' to the counsel for the petitioner and in respect of other witnesses holding office, service of summons upon them be ensured through concerned Chief Judl. Magistrate. The next date shall be fixed providing for sufficient time for the service of summonses and two consecutive dates shall be fixed for recording defence evidence and the petitioner directed to adduce evidence in defence within two days.Petition Allowed. *******