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2019 DIGILAW 1946 (ALL)

Supraba @ Suprabha v. State Of UP

2019-08-13

KARUNA NAND BAJPAYEE

body2019
JUDGMENT : 1. This application u/s 482 Cr.P.C. has been moved on behalf of applicant seeking the quashing of order dated 01.7.2019 passed by the Additional Sessions Judge, Court No.9, Muzaffar Nagar in S.T. No.246 of 2000 (State vs. Vikrant @ Vikky Tyagi and others) u/s 364 I.P.C., P.S.-Civil Lines, District-Muzaffar Nagar, whereby application moved on behalf of accused u/s 311 Cr.P.C. has been rejected. 2. Heard learned counsel for applicant. 3. The main submission raised by the counsel for applicant is that the impugned order, whereby the application moved u/s 311 Cr.P.C. seeking the summoning of witness namely Chandramani was rejected, does not contain reasons for the rejection and therefore is not sustainable in the eyes of law. Further submission is that the witness was named in the charge-sheet and his production would have helped the court to arrive at the ends of justice, and therefore, the decision of the court not to summon him is not a proper exercise of power. 4. Heard learned A.G.A. and perused the record. 5. It appears from the record that entire prosecution evidence has already been recorded and the statement u/s 313 Cr.P.C. was also thereafter recorded. Not only this, as many as five defence witnesses were thereafter examined on behalf of accused. It appears that it was only after the production of five defence witnesses that the said application seeking examination of said witness u/s 311 Cr.P.C. was moved. The application in this regard has been annexed as Annexure No.3. Perusal of this application shows that it does not contain any kind of disclosure regarding the material or the nature of evidence which was sought to be brought on record by the aforesaid witness. This Court does not find any clue from the application or from the submissions made by the counsel about the possible material that was sought to be brought on record through the production of aforesaid witness. Why the witness was being sought to be produced, on which aspects of the case was he supposed to shed light, what kind of facts and circumstances he could have proved or disproved and what was the nature or implications of the proposed evidence, have not been made clear in the application at all. The evidence which the prosecution wanted to produce, has already been produced and the witnesses which the defence desired to produce, have too already been produced. The evidence which the prosecution wanted to produce, has already been produced and the witnesses which the defence desired to produce, have too already been produced. Thereafter at a very belated stage, such kind of ambiguous application seeking production of witness namely Chandramani was moved on behalf of accused that too without containing sufficient reasons which may justify the examination of said witness. This is true that the power u/s 311 Cr.P.C. is having sufficiently extensive ambit and scope and the same can be exercised at any stage of the trial before pronouncing the judgment but the Court has to be satisfied at its own end to exercise such power. If in the estimate of the trial court the production of the aforesaid witness would have been essential to arrive at the just decision of the case, it had to summon this witness certainly. Even if the trial court was not obliged to summon the witness, he could have still summoned the witness in case he would have been satisfied by the accused side that the reasons to summon the said witness are good enough to justify his examination. In the present case the accused could not furnish any reason which could have vindicated the examination of the said witness. The application is completely lacking in that regard and there was absolutely no ground shown which could have persuaded the trial court to accept the prayer. In such circumstances if the application has been rejected this Court does not see any good reason to interfere in the judicial discretion of the trial court as the same does not appear to have been exercised perversely. It cannot be held even as a matter of rule, much less than as a matter of law that all the witnesses named in the charge sheet have to be produced in the court. Primarily it is the discretion of the prosecution to decide about the number of witnesses or the nature of evidence which is required to be produced in the best of its interest. Ordinarily the prosecution cannot be forced to produce a particular witness and cannot be deprived of its discretion in that regard at the behest of the accused. Primarily it is the discretion of the prosecution to decide about the number of witnesses or the nature of evidence which is required to be produced in the best of its interest. Ordinarily the prosecution cannot be forced to produce a particular witness and cannot be deprived of its discretion in that regard at the behest of the accused. Of course, it goes without saying that the trial court in its discretion has enough power to summon any witness whether cited or not cited in the charge sheet and examine him, if it finds that the production of such witness may go to help in arriving at a just decision of the case. But unless the court comes to any such conclusion either suo moto or at the initiative of the litigating party, the discretion of the prosecution in this regard ought to be respected. The absence of good reasons and the belated stage of seeking his examination obviously appear to have prompted the trial court for not accepting the prayer to summon the witness and examine him u/s 311 Cr.P.C. 6. Nevertheless this Court feels constrained to observe that the summary manner in which the application has been rejected is not a very desirable way of disposing of the application. When a Court acts in its judicial capacity and passes an order, it is always advisable to incorporate the reasoning for passing such order, however brief they may be. When no reasons are accorded for passing an order, the higher court is put at a disadvantageous position and is simply left guessing as to what could have been the actual reasons for passing of a particular order. The court shall be better advised to adopt a more judicious approach in future and pass orders ascribing reasons for adopting a particular view. But despite the shortcoming in the order this Court does not deem it fit to quash the same for the obvious reason that in the estimate of this Court itself such kind of application, as was moved on behalf of accused, deserved it rejection. Regarding the decision of the trial court to reject the application, this Court has no disagreement. But despite the shortcoming in the order this Court does not deem it fit to quash the same for the obvious reason that in the estimate of this Court itself such kind of application, as was moved on behalf of accused, deserved it rejection. Regarding the decision of the trial court to reject the application, this Court has no disagreement. In such circumstances quashing of the order and remanding the same back to the trial court with the direction to accord reasons would have resulted in nothing except a purposeless waste of public time and would have definitely resulted in unneeded procrastination of the trial. 7. For the reasons given above, the application stands dismissed.