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2013 DIGILAW 485 (MP)

Shivprasad Chaturvedi v. State of M. P.

2013-04-09

D.K.PALIWAL, S.K.GANGELE

body2013
JUDGMENT : Heard. 2. The Petitioner is aggrieved with the order dated 23.11.2012, passed by the First Additional Sessions Judge, Vidisha, in Special Case No.06/2011, whereby the application filed by the petitioner under Section 233(3) of Cr.P.C for summoning defense witnesses has been disallowed. 3. The brief facts of the case are that the petitioner is facing trial for the charges under Section 7 & 13 (1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and Section 420 of IPC. 4. The petitioner moved an application under Section 233(3) of Cr.P.C. for summoning of Shri B.S. Kag, Dr. R.N. Rajoriya, Shri Naresh Singh, Head Constable and Assistant General Manager, BSNL, Vidisha, as defence witnesses along with other witnesses. The application was opposed by the prosecution. The learned trial Court has permitted the petitioner for summoning Rajiv Dixit and Brijesh Joshi as defence witnesses, however prayer for summoning Shri B.S. Kag, the then DSP, CID, Bhopal, Dr. R.N. Rajoriya, Shri Naresh Singh, Head Constable and Assistant General Manager, BSNL, Vidisha, as defence witnesses has been rejected, being aggrieved by the same, this petition has been preferred. 5. It is submitted that B..S. Kag, I.O has submitted closure report after investigation. Dr. Rajoriya has treated the wife of the petitioner at Bhind during the alleged period. To disprove the allegation that petitioner is having criminal back ground the testimony of Head Constable is necessary. Petitioner wants to summon Assistant General Manager, BSLN, Vidisha, to prove installation of telephone. 6. The learned trial Court has committed illegality in rejecting the prayer of the petitioner. 7. Learned Public Prosecutor has supported the impugned order and submits that the learned trial Court has not committed any error in rejecting the application. 8. We have considered the submissions of the parties. It is not in dispute that the petitioner is facing trial for the charges under Sections 7 & 13 (1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and Section 420 of IPC for demand of illegal gratification of Rs.50,000/- being a public servant and cheating Ram Beti, Raju and Vinod. Learned trial Court has noted in para-5 of its order that there is no dispute that the closure report was prepared by Shri B.S. Kag. In view of this, in our opinion, Shri B.S. Kag, the then DSP, CID, Bhopal is a material witness for the defence. Learned trial Court has noted in para-5 of its order that there is no dispute that the closure report was prepared by Shri B.S. Kag. In view of this, in our opinion, Shri B.S. Kag, the then DSP, CID, Bhopal is a material witness for the defence. So far Dr. Rajoriya is concerned, it is submitted that he has treated the wife of the petitioner from 26.09.99 to 28.06.99. The petitioner has taken a plea of alibi, therefore, this witness also appears to be a material witness. Considering the allegation levelled against the petitioner that he is having criminal back ground, the testimony of Head Constable appears to be material. As regard Assistant General Manager, BSLN, Vidisha, petitioner wants to summon this witness to prove installation of telephone. 9. It is the fundamental right of the accused to have a just and fair trial and for this accused should be given every opportunity to adduce evidence to prove his innocence. Considering the seriousness of the charges against the petitioner, we find that the learned trial Court has committed illegality in rejecting the prayer for summoning the defense witnesses, therefore, the impugned order can not be allowed to stand. 10. Resultantly, the revision petition is allowed. Impugned order is set aside. The trial Court is directed to issue process for summoning the aforesaid defense witnesses. 11. With the aforesaid direction, petition stands disposed of.