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2014 DIGILAW 1851 (RAJ)

Dara Ram @ Dara Singh v. State of Rajasthan

2014-11-18

SANDEEP MEHTA

body2014
JUDGMENT 1. - Heard learned Counsel for the parties. 2. The Instant Miscellaneous Petition has been preferred by the petitioner accused against the Orders dated 17.12.2013 and 18.12.2013 passed by the learned Additional Sessions Judge, Suratgarh in Sessions Case No. 25/2012 whereby, the prayer made by the accused for summoning defence witnesses was dismissed. 3. The petitioner is facing trial before the Trial Court for the offences under sections 363, 366A and 376 I.P.C. Prosecution evidence was closed on 22.11.2013. The posted for recording defence evidence. On the date fixed for recording the defence evidence, i,e. 7.12.2013, a verbal prayer was made on behalf of the accused to summon certain witnesses in defence. The Trial Court fixed a slot of 3 days between 16th to 18.12.2013 and instructed the defence to complete its evidence during the said period. On 17th December, an application was filed op behalf of the petitioner to summon certain witnesses in defence, the Trial Court rejected the application by the Order dated 17.12.2013 and closed the defence evidence on 28.12.2013. Hence, this petition. 4. Shri Garg, learned Counsel for the petitioner, submitted that the Trial Court acted unfairly in depriving the petitioner accused of an appropriate opportunity to lead defence. The refusal to summon defence witnesses virtually amounts to putting fetters on the right of the accused to defend himself. He therefore prays that the impugned orders be set aside and the Trial Court be directed to summon and examine defence witnesses as proposed by the accused. 5. Per contra, the learned Public Prosecutor and the complainant's Counsel opposed the submissions advanced on behalf of the accused and submitted that the orders passed by the Trial Court are just and proper and do not call for any interference. 6. Heard and considered the arguments advanced at the bar and perused the impugned orders. 7. On going through the proceedings of the Trial Court, it is evident that the prosecution evidence was closed on 22.11.2013. The first date fixed for defence evidence was 7.12.2013. The Trial Court closed the defence evidence within a matter of 11 days from the first date fixed for said purpose. During this interval, the accused filed an application for summoning some witnesses in defence which was rejected. 8. The case being tried before the Trial Court is in the nature of a Sessions trial. The Trial Court closed the defence evidence within a matter of 11 days from the first date fixed for said purpose. During this interval, the accused filed an application for summoning some witnesses in defence which was rejected. 8. The case being tried before the Trial Court is in the nature of a Sessions trial. As per Section 233(2) Cr.P.C., if an accused applies for the issue of any process for compelling the attendance of any witness, the Judge shall Emphasis supplied 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. Thus, from a plain reading of the provision, it is evident that the prayer for summoning defence witnesses can only be refused only after recording reasons which too are confined by the provision itself. A prayer made by the accused to summon defence witnesses can only be refused if the Trial Court arrives at a satisfaction that the same was made for the purpose of vexation, delay or for defeating the ends of justice. In the case at hand, the Trial Court whilst rejecting the prayer made by the accused for summoning defence witnesses recorded a bald and baseless finding that the application for summoning defence witnesses was a ploy to delay the matter. It is relevant to note here that the accused was provided just a short period of 11 days to lead defence evidence. On the other and, the prosecution was given ample time to complete its evidence. The first written prayer made by the accused to summon defence witnesses within 10 days from the first date fixed for defence evidence was dismissed on the ground f being vexatious. The finding so recorded by the Trial Court while passing the impugned orders is obviously based on a total non-application of mind for two reasons. Firstly, the Trial Court did not even consider as to whether the witnesses, requested to be summoned in defence, were relevant or not. Secondly, no occasion had arisen for the accused to delay the proceedings because the application to summon defence witnesses was filed immediately after the first date fixed by the Trial Court for recording defence evidence. Firstly, the Trial Court did not even consider as to whether the witnesses, requested to be summoned in defence, were relevant or not. Secondly, no occasion had arisen for the accused to delay the proceedings because the application to summon defence witnesses was filed immediately after the first date fixed by the Trial Court for recording defence evidence. It is evident that by refusing to summon defence witnesses and by closing the defence evidence, the Trial Court has deprived the accused with an appropriate opportunity to defence himself. As a matter of fact, by closing the defence evidence in a matter of 12 days, the Trial Court acted in hot haste. The action taken by the Trial Court is totally arbitrary and unjust. The Trial Court did not strike a balance in the opportunity provided to the prosecution and the accused for leading their respective evidence. Consequently, this Court is of the opinion that the impugned orders cannot stand to scrutiny and deserve to be quashed in order to secure the ends of Justice. 9. As an upshot of the above discussion, the Miscellaneous Petition is allowed. The Orders dated 17.12.2013 and 18.12.2013 passed by the learned Additional Sessions Judge, Suratgarh are quashed. The Trial Court is now directed to summon the witnesses cited in the application filed by the accused and permit them to be examined in defence. If so required, the accused shall be at liberty to request the Trial Court to summon more defence witnesses by filing an application within a period of three weeks from the date of this order. In the event of such an application being filed, the Trial Court shall consider and decide the same in/accordance with law.Petition allowed. *******