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2016 DIGILAW 3401 (ALL)

LALLU SINGH v. STATE OF U. P.

2016-10-05

ABHAY MAHADEO THIPSAY

body2016
JUDGMENT : Hon'ble Abhay Mahadeo Thipsay,J. 1. Heard the learned counsel for the petitioners and the learned Additional Government Advocate. 2. In view of the controversy that is raised it is not necessary to issue any notice to the opposite party No.2 and to hear her. 3. In the circumstances, leave to delete the opposite party No.2, granted. 4. Necessary amendment be carried out forthwith. 5. The petitioners are the accused in Session Trial No. 814 of 2013. The trial is at an advanced stage, and defence witnesses are being examined. The petitioners had made an application for summoning three witnesses in defence which was allowed and the witnesses were summoned. However, only one of them, i.e., Smt. Saroj Trivedi appeared before the court as a witness and the other two viz:- Km. Kriti Singh and Km. Pratiksha Singh did not remain present before the court in spite of service of summons. The petitioners then made an application that coercive process be issued to compel the presence of these witnesses. However, the learned Additional Sessions Judge was of the view that ''there was no basis for issuing coercive process against those witnesses'. The petitioners applied once more before the learned Additional Sessions Judge requiring him to recall the said order and reconsider the matter, but this application was also rejected by the learned Judge by his order dated 29.08.2016. It is, under these circumstances, the petitioners have approached this Court praying that the trial court be directed to comply with its own order of summoning the defence witnesses and the petitioners be permitted to complete their defence evidence by producing the defence witnesses with the help of appropriate process of the court. 6. I have gone through the impugned orders. 7. Before proceeding further, it may be observed that it is nobody's case that the evidence of the said witnesses, i.e., Km. Kriti Singh and Km. Pratiksha Singh is not relevant or that the application to call them as a defence witness has been made for vexation, or for delay, or for defeating the ends of justice. In fact, the trial court has accepted that these persons should be summoned and had already issued process, -summons- for their appearance. However, when the witnesses did not come for giving evidence the trial court declined to issue coercive process to compel the presence of the witnesses. 8. In fact, the trial court has accepted that these persons should be summoned and had already issued process, -summons- for their appearance. However, when the witnesses did not come for giving evidence the trial court declined to issue coercive process to compel the presence of the witnesses. 8. The reasoning of the learned Additional in that regard, as is reflected in the impugned order is as follows: ^^mudks Hkh leu Hkstk x;k] fdUrq mUgksus lk{; gsrq vkus ds fy, badkj dj fn;k gSA vc fdlh O;fDr dks izLrqr djkuk vfHk;qDr ds Lo;a dk nkf;Ro gSA ^^ 9. In other words, the learned Judge was of the view that ''it was the responsibility of the accused persons themselves to keep their witnesses present'. It is impossible to accept such a view as correct. 10. Section 233 of the Code of Criminal Procedure deals with adducing of defence evidence in a trial before the court of Sessions. Sub Section (3) thereof reads as under:- "(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." 11. A bare reading of this Section makes it clear that it speaks of compelling the attendance of any witness and uses the word ''process' -which includes a warrant also- instead of the word ''summons', leaving no manner of doubt that it is the duty of the trial court to compel the presence of a defence witness who had disobeyed the summons to appear, by issuing coercive process, i.e., a bailable warrant, or in an appropriate case, even a non-bailable warrant. The observation that ''it would be the responsibility of the accused to produce their own witnesses', meaning thereby that the accused is not entitled to get any assistance from the legal/ court machinery, for securing the presence of the defence witnesses, is unfortunate and is against the criminal jurisprudence and the very concept of a fair trial. 12. The impugned orders, being not in accordance with law, are liable to be set aside. 13. The petition is allowed. 14. The impugned orders dated 11.08.2016 and 29.08.2016 are set aside. 15. 12. The impugned orders, being not in accordance with law, are liable to be set aside. 13. The petition is allowed. 14. The impugned orders dated 11.08.2016 and 29.08.2016 are set aside. 15. The learned Additional Sessions Judge shall take appropriate steps to compel the appearance of the said defence witnesses, in accordance with the law. 16. The petition is disposed of in the aforesaid terms.