JUDGMENT : Shamim Ahmed, J. 1. Heard Sri Satish Chandra Mishra, learned Senior Advocate assisted by Sri Mukesh Kumar Tewari, learned counsel for the applicant and Sri Awadhesh Kumar Pandey, learned A.G.A. for the State as well as perused the record. 2. The instant application under Section 482 Cr.P.C. has been moved by the applicant, namely, Rupesh Kumar Srivastava Alias Nirmal Srivastava with a prayer to quash the impugned order dated 22.03.2024 passed by learned Additional Sessions Judge, Court No.9, Gonda in Sessions Trial No.53/2016, arising out of Case Crime No.203 of 2012, under Section 307 I.P.C., Police Station Motiganj, District Gonda. 3. Learned senior counsel for the applicant submits that final report was submitted in the case of applicant and one co-accused by the Investigating Officer on 30.07.2013 on the ground that the complicity of the applicant and co-accused was not found in the alleged crime. Thereafter, the complainant had filed an application on 14.09.2014 before the Superintendent of Police, Gonda for further investigation of the matter, wherein further investigation was carried out and the charge sheet was submitted against the applicant on 22.01.2016 under Section 307 I.P.C. in a mechanical manner without considering the evidence. 4. Learned senior counsel further submits that cognizance upon the charge sheet was taken and the trial of the case was started wherein the complainant was summoned for examination as witness. On 01.08.2017, the complainant Sushil Shukla/P.W.-1 was examined in chief, however, the cross-examination of this witness could not be completed due to paucity of time, therefore, the matter was postponed for cross-examination. 5. Learned senior counsel further submits that on 09.08.2017, the applicant has filed an application under Section 207 Cr.P.C. before the learned trial court for providing certain documents which had been collected during investigation, however, the same was refused and application was rejected by the learned trial court vide order dated 20.02.2020. Thereafter, the P.W.-1 was summoned for cross-examination on 10.03.2021, 23.03.2021, 01.11.2021, 24.11.2021 and 23.12.2021 but due to pandemic of COVID-19, the cross-examination could not be concluded. On 05.04.2022, the matter was fixed for cross-examination but an application for adjournment was filed by the applicant, which was rejected by the learned trial court vide order dated 05.04.2022 closing the opportunity of cross examination. 6. On 05.04.2022, the matter was fixed for cross-examination but an application for adjournment was filed by the applicant, which was rejected by the learned trial court vide order dated 05.04.2022 closing the opportunity of cross examination. 6. Learned senior counsel further submits that on 18.08.2022, the applicant has filed an application for grant of permission for cross examination of P.W.-1/Sushil Shukla, however, the same was rejected by the learned trial court vide order dated 06.09.2022 and on 15.02.2024, the learned trial court has passed an order whereby the P.W.-1 Sushil Shukla was summoned for 27.02.2024 for cross-examination in respect of the co-accused Triyugi Narain Gupta. In the meantime, the applicant has moved an application under Section 482 Cr.P.C. No.5258 of 2023 before this Hon'ble Court in the month of May, 2023 for quashing of the order dated 06.09.2022 passed by the learned trial court whereby the application for grant of permission for cross-examination of P.W.-1 was rejected, however, during the pendency of the aforesaid case before this Hon'ble Court, the learned trial court had passed the order dated 15.02.2024 whereby the P.W.-1 Sushil Shukla was summoned for cross-examination in respect of co-accused Triyugi Narain Gupta, therefore, the applicant has withdrawn the aforesaid case i.e. application under Section 482 Cr.P.C. No.5258 of 2023 on 01.03.2024. 7. Learned senior counsel further submits that the applicant had filed an application under Section 311 Cr.P.C. before the learned trial court on 06.03.2024 for grant of permission for cross-examination of P.W.-1 Sushil Shukla, which has been rejected by the learned trial court vide order dated 22.03.2024 on the ground that the opportunity of cross-examination in respect of the applicant has already been closed on 05.04.2022 as the applicant had already been afforded the opportunities of cross-examination of P.W.-1 Sushil Shukla. The same has been challenged in the present case before this Court. 8. Thus, learned senior counsel for the applicant submits that the learned trial court had illegally closed the opportunity of cross-examination. The same has been challenged in the present case before this Court. 8. Thus, learned senior counsel for the applicant submits that the learned trial court had illegally closed the opportunity of cross-examination. The trial of the present applicant as well as of the co-accused have been arisen from the same case crime and are running together and once the P.W.-1 Sushil Shukla had already been summoned for cross examination on 01.04.2024 in respect of co-accused Triyugi Narain Gupta then there is no legal impediment if the applicant is allowed to cross examine the said witness on the date fixed in order to secure the ends of justice by holding an unbiased and fair trial which will also be in consonance of the principle construed under Article 21 of the Constitution of India. Learned senior counsel further submits that while passing the impugned order, the learned trial court has not considered the fact that the cross-examination of the informant P.W.-1, who is the prime witness of the case, is necessary and in absence of cross-examination of the informant, it is not possible to deliver the justice in good sense and hold an unbiased and fair trial which is mandate to be followed in view of the provisions of Article 21 of the Constitution of India. 9. Learned senior counsel for the applicant lastly submits that in the interest of justice as well as to secure the ends of justice in judicial manner, one last opportunity of cross-examination of P.W.-1 Sushil Shukla should be afforded to the applicant. The applicant undertakes that he will not misuse the liberty of cross-examination of P.W.-1 Sushil Shukla and will definitely conclude the same within a day without seeking any adjournment. Thus, the instant application may be allowed and the impugned order dated 22.03.2024 may be quashed. 10. On the other hand, Sri Awadhesh Kumar Pandey, learned A.G.A. for the State submits that the learned trial court had rightly passed the impugned order dated 22.03.2024 whereby the application for summoning the P.W.-1 Sushil Shukla for cross-examination was rejected. The applicant was provided ample opportunities to cross examine the P.W.-1, however, he was just lingering on the matter on one and another ground, which is a ploy to get the proceedings delayed. He further submits that the learned trial court had rightly closed the opportunity of the applicant for cross-examining the P.W.-1 Sushil Shukla. 11. The applicant was provided ample opportunities to cross examine the P.W.-1, however, he was just lingering on the matter on one and another ground, which is a ploy to get the proceedings delayed. He further submits that the learned trial court had rightly closed the opportunity of the applicant for cross-examining the P.W.-1 Sushil Shukla. 11. After considering the arguments advanced by learned counsel for the respective parties and after perusal of material placed before this Court, this Court is of the view that it will be relevant to quote Section 311 Cr.P.C., which reads as under:- "311. Power to summon material witness, or examine person present. - Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case." 12. Under the provisions of section 311 Cr.P.C., the court has a plenary power to summon any person at any stage of the proceedings as a witness. This power includes recall and re-examination of any person who has already been examined. This power is to be exercised when the court finds it necessary to summon/recall any witness for just decision of the case. The law puts no fetters on the powers of the courts to call for any witness to attain the highest goal of justice. In my opinion this provision of law gives expression to the inherent power of the courts which is available to them by virtue of being the supreme authority who has been entrusted with responsibility to do justice. The power lies with the Court alone as juxtaposed to rights or powers of parties. The others stake holders whether prosecution or defence, have a limited role of drawing the attention of the court and putting the relevant material before it which may assist it in arriving at a correct inference. On the other hand, section 233 Cr.P.C. works in a different plane altogether. For better understanding of difference between the two sections, I find it appropriate to reproduce section 233 Cr.P.C. as below:- "233. Entering upon defence. On the other hand, section 233 Cr.P.C. works in a different plane altogether. For better understanding of difference between the two sections, I find it appropriate to reproduce section 233 Cr.P.C. as below:- "233. Entering upon defence. (1) Where the accused is not acquitted under Section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof. (2) If the accused puts in any written statement, the Judge shall file it with the record. (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." 13. Section 233 Cr.P.C. finds place under Chapter XVIII titled as 'trial before a court of session'. This provision is essential part of session trial and is applicable when the prosecution evidence is complete and the accused is given an opportunity to produce the evidence in its defence. Undoubtedly this right has been given to the defence to produce its witnesses as part of fair trial and as part of legal principle of hearing both the sides. In my opinion, here the right belongs to the accused and not to the court concerned, in the sense that the court concerned shall ordinarily issue process and can decline to summon the witness only for the reason that the request is made for the purpose of vexation or delay or for defeating the ends of justice. The difference between the powers of the court and the right of the accused is too obvious. Under section 311 Cr.P.C., the power lies in the courts only and under section 233 Cr.P.C., the right lies with the accused and the court's interference is limited. The court can only refuse to issue summons where it ought to have refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice only. 14. The court can only refuse to issue summons where it ought to have refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice only. 14. In my view, if the application is refused on the grounds which are not covered by three excluding clauses, as provided in latter part of section 233(3) Cr.P.C. such approach shall be alien as far as scope of section 233 Cr.P.C. is concerned. 15. In Kalyani Baskar vs. M.S. Sampoornam; (2007) 2 SCC 258 , the Hon'ble Supreme Court while elaborating the meaning of fair trial observed as below:- "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 the courts should be jealous in seeing that there is no breach of them." 16. I have gone through the impugned order dated 22.03.2024 passed by learned Additional Sessions Judge, Court No.9, Gonda. The trial court had failed to apply the law in right perspective and ignored the difference in scope and implications in which the provisions of section 311 Cr.P.C. and section 233(3) Cr.P.C. are meant to be applied. Hence the order of the trial court suffers from legal flaw and is not sustainable which is liable to be set aside. 17. Accordingly, the impugned order dated 22.03.2024 passed by learned Additional Sessions Judge, Court No.9, Gonda in Sessions Trial No.53/2016, arising out of Case Crime No.203 of 2012, under Section 307 I.P.C., Police Station Motiganj, District Gonda is hereby set aside and reversed. 18. Accordingly, in the interest of justice, the applicant is given a last opportunity to appear before the learned concerned trial court on or before 15.04.2024 alongwith certified copy of this order and move an application for cross examination of the witness P.W.-1 Sushil Shukla and the learned trial court is directed to summon the witness P.W.-1 Sushil Shukla for cross examination on 19.04.2024, the date fixed or any other date fixed by the learned trial court. 19. 19. It is made clear that it is the last opportunity provided to the applicant to cross examine the P.W.-1 Sushil Shukla, failing which, the benefit of this order will come to an end. 20. With the aforesaid observation and direction, the instant application stands allowed.