Allahabad High Court
Amar Chand vs State Of U.P. & Another on 2 April, 2013
Bench: S.C. Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 50
Case :- CRIMINAL REVISION No. - 884 of 2013
Petitioner :- Amar Chand
Respondent :- State Of U.P. & Another
Petitioner Counsel :- H.K. Shukla
Respondent Counsel :- Govt. Advocate
Hon'ble S.C. Agarwal,J.
Parcha filed by Sri S.K. Pandey on behalf of the complainant - opposite party no.2 is taken on record.
Heard Sri H.K Shukla, learned counsel for the revisionist, learned A.G.A. for the State as well as Sri S.K. Pandey, learned counsel for the complainant - opposite party no.2 and perused the material available on record.
This revision under section 397/401 Cr.P.C. is directed against order dated 20.3.2013 passed by Sessions Judge, Basti in Sessions Trial No.38 of 2009 (State Vs. Amar Chand & others) under sections 147, 148, 149, 302, 504, 506 IPC, P.S. Kotwali, District Basti, whereby the opportunity of leading defense evidence was closed and the case was fixed for arguments.
Earlier, on an Application u/s 482 Cr.P.C. No.20655 of 2012 (Amar Chand Vs. State of U.P.), this Court, on 9.7.2012, directed Sessions Judge, Basti to decide Sessions Trial Nos. 38 of 2009 and 91 of 1995 together as far as possible within a period of six months. In the instant case, statements of accused under section 313 Cr.P.C. were recorded on 30.1.2013 and 4.2.2013 was fixed for defense evidence. On 4.2.2013, the defense witnesses were ordered to be summoned fixing 11.2.2013. Subsequently, the witnesses were summoned for 18.2.2013, 25.2.2013 and 4.3.2013. Again summons were issued for 19.3.2013 and last opportunity was granted to the defense. On 19.3.2013, again application for summoning the witnesses was moved on behalf of the revisionist, which has been rejected by the trial court on the ground that in the light of order passed by the High Court expediting the hearing of the trial, it was not possible to grant further time.
Learned counsel for the revisionist submits that right to adduce defense evidence is a statutory right of the revisionist, which cannot be taken away on the basis of technicalities. Whereas on one hand, years together were granted to the prosecution to lead its evidence and on the other hand, only two months' time given to the defense is appearing to the trial court as excessive. The contention is that when the summons have been issued by the trial court to the witnesses to give evidence on behalf of the defense and the witnesses do not appear on the date fixed, the trial court has no other option, but to issue coercive process against the witnesses to ensure their presence at the time of trial. It was further submitted that the then Superintendent of Police and the then District Magistrate, Basti have been summoned as defense witnesses. These witnesses are not in control of the defense and, therefore, the responsibility for summoning these witnesses rests on the prosecution as well as on the trial court.
Learned A.G.A. as well as learned counsel for the complainant - opposite party no.2 supported the impugned order.
It is obvious that the two defense witnesses i.e. the then S.P. and the then D.M. of Basti are public servants. They are not private citizens or friends of the accused, who can be brought to the Court by persuasion. They are the official witnesses and if they ignore the summons issued by the Court, the Court is bound to issue coercive process against them. Once the summons have been issued to the defense witnesses, it is the responsibility of the trial court to ensure that the summons are served and are complied with by the persons so summoned. The trial court cannot take a shortcut by closing defense evidence and thereby prejudicing the rights of the accused forever. The right of leading defense evidence cannot be curtailed on technical grounds. By closing the defense evidence in the instant case, serious prejudice has been caused to the revisionist and, therefore, impugned order cannot be sustained and is liable to be set-aside.
Revision is allowed.
Impugned order dated 20.3.2013 is set-aside and learned Sessions Judge, Basti is directed to ensure that the summons issued to the defense witnesses, mentioned above, are served on them and their evidence on behalf of the defense is recorded in Court. If the witnesses fail to appear despite summons, coercive process shall be issued against them to ensure their presence.
Order Date :- 2.4.2013
ss
