HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 49 Case :- APPLICATION U/S 482 No. - 8606 of 2011 Petitioner :- Dinesh Chandra Srivastava Respondent :- State Of U.P. Petitioner Counsel :- Prem Prakash,Ravi Prakash Srivastava Respondent Counsel :- Govt.Advocate Hon'ble Shri Kant Tripathi,J.
Heard Mr. Prem Prakash, learned counsel for the applicant and the learned AGA for the respondent and perused the record.
This is a petition under section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') for quashing the order dated 5.3.2011 rendered by Additional Sessions Judge, Court no.2, Kaushambi in sessions trial no. 210 of 2007, arising out of crime no. 222 of 2006, under sections 218, 219, 466, 194 and 120-B IPC, police station Manjhanpur, district Kaushambi.
It appears that in the aforesaid sessions trial, the applicant, who is an accused, moved an application at the stage of defence evidence to summon the inquiry report held against him on administrative side and also to summon Hon'ble Ashok Srivastava, J. (the then District and Sessions Judge, Kaushambi) for proving the inquiry report but in the last the applicant changed the second request and moved an application for appointment of Commissioner to examine Hon'ble Ashok Srivastava, J. The learned Additional Sessions Judge rejected the application on the ground that the prayer was misconceived and was not necessary for proper decision of the case.
Before proceeding to examine the contentions of the learned counsel for the applicant and the respondent, it seems to be just and expedient to refer to the certain relevant facts of the case.
The applicant Dinesh Chandra Srivastava was posted as Reader in the court of District and Sessions Judge, Kaushambi, where sessions trial no.190 of 2005, State vs. Irshad and another was pending for trial. Ultimately the Sessions Judge recorded a judgment of conviction in the said sessions trial and the matter came up before this Court in appeal. It is alleged that certain alterations, interpolations, cuttings, over-writings and erasings were made in the statements of certain prosecution witnesses. The District & Sessions Judge held an inquiry and found that cuttings and interpolations etc. were not committed when the matter was pending in the court, therefore, neither the applicant nor any other person was responsible. While concluding the inquiry, the District & Sessions Judge directed for lodging of an FIR. Accordingly the senior administrative officer lodged the FIR, and the police, on conclusion of the investigation, submitted charge sheet against the applicant Dinesh Chandra Srivastava and other accused, holding that they were responsible for the aforesaid forgery. In due course of time the matter was committed to the court of sessions and is now pending in the court of IInd Additional Sessions Judge, Kaushambi as S.T. No. 210 of 2007, State vs. Dinesh Chandra Srivastava. In the said sessions trial no. 210 of 2007, prosecution evidence has already concluded. The applicant has also been examined under section 313 of the Code. The aforesaid application for summoning the inquiry report was moved at the stage of defence evidence.
Learned counsel for the applicant submitted that the applicant has a right to place on record all available evidence in support of the defence to prove his innocence. The inquiry report, which is in favour of the applicant, is a material defence evidence, therefore, the Additional Sessions Judge was not justified in refusing to summon the inquiry report. It was next submitted that the inquiry report can not be read as evidence without its formal proof, therefore, the statement of Hon'ble Ashok Srivastava, J. is necessary. But during the course of hearing, the learned counsel for the applicant conceded that the report can be proved even by examining the senior administrative officer or any other official, who is acquainted with the signature of Hon'ble Ashok Srivastava, J. As such the learned counsel for the applicant did not press the application for issuing commission for examination of Hon'ble Ashok Srivastava, J., which is liable to be dismissed.
It is well settled that if no acquittal is passed under section 232 of the Code, the court has to call upon the accused to enter on his defence. Admittedly, in this case, no acquittal has been passed under section 232 of the Code, therefore, the provisions of section 233 of the Code are fully attracted, which reads:
"233.(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."
Therefore, the accused has a right to be provided an opportunity to adduce any evidence in support of his defence, if he is not acquitted under section 232 of the Code. This right of the accused is a very valuable right which can not be curtailed in any way. If the accused applies for issue of any process for procuring the attendance of any witness or for production of any document or thing, the Judge has to issue such process invariably. The prayer for issuing any such process can be dismissed only when the court is satisfied that the prayer has been made for the purpose of vexation, delay or for defeating the ends of justice. In other words, if the prayer for issue of a process to any witness or for production of any document or the thing, has been made by the accused not with the object of defending his case and bringing on record relevant material necessary for establishing his defence, but has been made merely to delay the trial or to defeat the ends of justice or is vexatious, the court has to discard such prayer. Therefore, a heavy duty is cast upon the court to see as to whether or not the defence evidence sought to be summoned, is necessary for defending the charge levelled against the accused. If it is so, the trial judge has to summon the defence evidence. Therefore, the trial judge has to adopt a reasonable approach in such matter and should not reject the prayer for summoning defence evidence except on the grounds provided in sub-section (3) of section 233 of the Code.
Keeping in view the facts and the circumstances of the case, the inquiry report, by which the applicant was held not guilty and has been exonerated, seems to be a material piece of evidence, therefore, in case that document is not brought on record, it may result in causing failure of justice in the case and would ultimately prejudicially affect the applicant's valuable right of defence to show his innocence.
The petition is partly allowed. The learned Additional Sessions Judge is directed to summon the original inquiry report only (not other materials of the record of the inquiry). In case the inquiry report is required in law to be proved, in that event, he shall summon the senior administrative officer or any other official of the Kaushambi judgeship, who is acquainted with the signature of Hon'ble Ashok Srivastava, J. The learned Additional Sessions Judge shall get a copy of the inquiry report proved by the witness so summoned and place the same on record of the session trial. The original inquiry report, on proof of its copy shall be returned to the office of the District Judge, Kaushmbi and shall not be made a part of the record of the session trial. The prayer for issuing a commission to record the statement of Hon'ble Ashok Srivastava, J. is rejected.
The order dated 5.3.2011 rendered by the Additional Sessions Judge, Court no.2, Kaushambi stands modified accordingly.
Order Date :- 25.3.2011 RKSh