JUDGMENT : Heard the parties. 2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 with a prayer to quash/set aside the order dated 22.03.2025 passed in M.C.A. No.500 of 2025 in connection with S.T. Case No.581 of 2023 (arising out of Parsudih P.S. Case No.92 of 2023) by the learned Additional Sessions Judge-VII, Jamshedpur, whereby and where under the learned Additional Sessions Judge-VII, Jamshedpur, has rejected the petition filed by the petitioner under Section 233 (3) of the Cr.P.C. for issuing summons to the four witnesses whose names and address have been mentioned in para-2 of the petition dated 05.03.2025 filed by the petitioner- who is the accused person of the said S.T. Case No.581 of 2023 (arising out of Parsudih P.S. Case No.92 of2023, in the court of learned Additional Sessions Judge-VII, Jamshedpur,. 3. The brief fact of the case is that during trial, after closure of the evidence of the prosecution, statement under Section 313 of the Cr.P.C. has been recorded. Thereafter the petitioner, who is the accused person of the said case, was given opportunity to adduce defence evidence. After examining one defence witness, the petitioner filed the petition to examine four witnesses whose statement has been recorded under Section 161 Cr.P.C. by the Investigating Officer of the case during the investigation of the case but they were not cited as the witnesses in the charge-sheet. The learned Additional Sessions Judge-VII, Jamshedpur observing that, since the statement of the witnesses sought to be examined by the petitioner in his defence are already available in the record and the same can be looked into by the trial court, hence, the examination of the witnesses sought to be examined by the petitioner, will amount to wasting the time of the court; rejected the said application filed by the petitioner, by the impugned order dated 22.03.2025. 4. Learned senior counsel appearing for the petitioner submits that the learned trial court failed to consider that the examination of the four witnesses sought to be examined by the petitioner in his defence are such witnesses whose testimony is essential for the just decision of the case. 4. Learned senior counsel appearing for the petitioner submits that the learned trial court failed to consider that the examination of the four witnesses sought to be examined by the petitioner in his defence are such witnesses whose testimony is essential for the just decision of the case. It is next submitted that the learned trial court also failed to consider that the witnesses sought to be examined by the petitioner are material witnesses and the learned trial court has arbitrarily rejected the petition filed by the petitioner without considering the settled principle of law. 5. Learned senior counsel for the petitioner relies upon the judgment of the Hon’ble Supreme Court of India in the case of Sunder Lal vs. State of Uttar Pradesh & Another reported in (2024) 6 SCC 639 wherein the Hon’ble Supreme Court of India has considered that there is no bar in law for examining the witnesses whom the prosecution chose to discharge; to be examined as defence witnesses, as it is for the trial court to consider the evidentiary value of such witnesses, while coming to its conclusion. Hence, it is submitted that the prayer as prayed for in the instant Cr.M.P., be allowed. 6. Learned Addl.P.P. appearing for the State vehemently opposes the prayer of the petitioner made in the instant Cr.M.P. and submits that the petitioner was deliberately delaying the disposal of the sessions trial and taking note of the delaying tactics of the petitioner, the learned trial court has rightly rejected the prayer. Hence, it is submitted that this Cr.M.P., being without any merit, be dismissed. 7. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that it is a settled principle of law that calling upon the accused to enter his defence under Section 233 of the Code of Criminal Procedure; is not a mere empty formality but is an essential part of a criminal trial. The discretion of the court to reject an application 233 (3) of the Cr.P.C. for compelling attendance of witness is only on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. Subject to these restrictions, the accused has the unfettered right to have any witness, document or thing summoned. The discretion of the court to reject an application 233 (3) of the Cr.P.C. for compelling attendance of witness is only on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. Subject to these restrictions, the accused has the unfettered right to have any witness, document or thing summoned. Where the application for summoning the defence witness is made well within time and their evidence is material to the defence, summoning the defence witnesses should not be declined. 8. Now, coming to the facts of the case, the undisputed fact remains that the witnesses sought to be examined in this case have knowledge about the alleged offence committed; otherwise there could not have been any reason for the Investigating Officer of the case to record their statements under Section 161 of the Cr.P.C. Nowhere in the impugned order, the learned trial court has mentioned that the testimony of the witnesses sought to be examined by the petitioner, is not relevant for the just disposal of the case. The reason assigned by the trial that their statement under Section 161 of the Cr.P.C. is available in the record which will suffice the purpose of the defence, is fallacious, because it is a settled principle of law that the statement of a witness recorded under Section 161 of Cr.P.C., is not a substantive evidence. When the witness comes to the court, the petitioner who is an accused, is not restricted to put questions to such witnesses about the statement made under Section 161 of Cr.P.C. only but the defence is free to put any question to such witness; beyond what he has stated in his statement under Section 161 of Cr.P.C. before the police. 9. Under such circumstances, this Court is of the considered view that the learned Additional Sessions Judge-VII, Jamshedpur has committed a grave illegality in rejecting the prayer of the petitioner for issue of summons to the four witnesses named in para-2 of the petition dated 05.03.2025. 10. Accordingly, the order dated 22.03.2025 passed in M.C.A. No.500 of 2025 in connection with S.T. Case No.581 of 2023 (arising out of Parsudih P.S. Case No.92 of 2023) passed by the learned Additional Sessions Judge-VII, Jamshedpur, is quashed and set aside. 11. 10. Accordingly, the order dated 22.03.2025 passed in M.C.A. No.500 of 2025 in connection with S.T. Case No.581 of 2023 (arising out of Parsudih P.S. Case No.92 of 2023) passed by the learned Additional Sessions Judge-VII, Jamshedpur, is quashed and set aside. 11. The learned Additional Sessions Judge-VII, Jamshedpur or its successor court is directed to issue summons to the said four witnesses by fixing appropriate date for their examination as defence witnesses on behalf of the petitioner who is the accused person of the case concerned. 12. Accordingly, this Cr.M.P. stands allowed.