Allahabad High Court
Surendra Singh vs State Of U.P. And Another on 12 December, 2011
Bench: Shri Kant Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 45
Case :- APPLICATION U/S 482 No. - 38096 of 2011
Petitioner :- Surendra Singh
Respondent :- State Of U.P. And Another
Petitioner Counsel :- K.K. Dwivedi
Respondent Counsel :- Govt.Advocate
Hon'ble Shri Kant Tripathi,J.
Heard Mr. K.K. Dwivedi for the petitioner and learned AGA for the State and perused the record.
With the consent of the learned counsel for the petitioner and the learned AGA, the petition is being disposed of finally at the stage of admission.
Mr. K.K. Dwivedi appearing for the petitioner submitted that in S.T. No.526 of 2010, pending in the court of Additional Sessions Judge, Court No.8, Agra, prosecution evidence closed and the trial reached at the stage of section 313 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') and this is evident from the order sheet dated 11.5.2011 but on the next date 18.5.2011 the learned Additional Sessions Judge, without any request, summoned the witnesses Prem Singh and Ram Ji Lal and posted the case for further evidence without indicating any reason as to whether the statements of aforesaid two persons were necessary for dispensation of justice or not. Mr. Dwivedi next submitted that after passing of the aforesaid order the case proceeded in the trial court. The petitioner moved transfer application in the court of Sessions Judge as also in this Court but both the transfer applications were dismissed. On 30.5.2011, the A.D.G.C. (Criminal) made an endorsement on the order sheet that no other witness was to be examined in the trial, even then, the matter is proceeding for the prosecution evidence. Mr. Dwivedi lastly submitted that the aforesaid witnesses Prem Singh and Ram Ji Lal were neither named in the FIR nor were cited in the charge sheet, therefore, learned trial court was not justified in issuing processes to them.
In my opinion, it is always open to the court to summon any person as a witness in a criminal trial if his evidence is necessary for dispensation of justice and this power has been conferred on the court by section 311 of the Code, therefore, summoning order of the aforesaid witnesses only on the ground that they were not named in the FIR nor in the charge sheet, can not be held to be per se illegal. It is well settled that when a trial court considers it proper to summon any person as a witness in exercise of its power u/s 311 of the Code, it has to indicate reasons as to why the evidence of the witness sought to be summoned is necessary for dispensation of justice. Without indicating any such reason, summoning order can not be said to be proper.
In the present case, the order dated 18.5.2011 has been passed without recording any reason and even without disclosing as to why the statements of Prem Singh and Ram Ji Lal were necessary for dispensation of justice, therefore, the order dated 18.5.2011 can not be upheld.
The petition is allowed. The order dated 18.5.2011 is quashed.
The trial court is directed to reconsider the question of summoning of witness Prem Singh and Ram Ji Lal and pass appropriate order afresh in accordance with law.
With the aforesaid observations, the petition is finally disposed of.
Order Date :- 12.12.2011
RKSh
