Mohd. Naim vs State Of U.P. And Another
2014 Latest Caselaw 9324 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Court No. - 44
 

 
Case :- APPLICATION U/S 482 No. - 43244 of 2014
 

 
Applicant :- Mohd. Naim
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Vivek Dhaka
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Karuna Nand Bajpayee,J.

This application u/s 482 Code of Criminal Procedure (which is herein after referred to as "the Code") has been filed on behalf of the applicant Mohd Naim  for quashing the impugned order dated 03.09.2014 passed against the applicant by the learned Additional Sessions Judge, Court No. 10, Meerut, whereby further opportunity to produce defence evidence has been shut down as well as to stay the entire proceedings initiated in Session Trial No. 1517 of 2008.

Heard Sri Vivek Dhaka, learned counsel for the applicant, learned AGA for the State and perused the record.

Normally this Court could have issued notice to the opposite party before adjudicating finality on this application but this course should have necessarily implied the staying of the lower court's proceedings. In the wake of the heavy pendency of the cases in this Court there was hardly any prospect for any early hearing of this application and that course would have proved very detrimental to the interest of the prosecution as it should have unnecessarily resulted in procrastinating the matter for a very long drawn period of time. As the illegality in the order, is apparent on the face of record and the matter was more of the nature where the compliance of this Court's order was involved, this Court has deemed it fit to decide the matter after taking assistance of learned AGA, who was heard at length apart from the submissions made by the learned counsel for the applicant.

It appears that certain witnesses, who were sought to be summoned in defence by the accused, were not appearing in the court and when on date 03.09.2014, which was the date fixed for defence evidence, time was further sought on behalf of the accused, the application seeking adjournment was not allowed and the opportunity to produce defence was closed by the court. The case was listed for arguments thereafter. 

It appears that the Magistrate, who had recorded the statement of the prosecutrix under section 164 of the Code and the concerned Qazi, were required to be summoned in defence along with record on behalf of the accused. The applicant had earlier also approached this Court and the Court had passed order dated 20.02.2014 in Criminal Misc. Application U/S 482 CrP.C. No. 4446 of 2014 in that regard. It appears that in compliance of the High Court's order, the court below had issued process to summon the two witnesses, which were required to be produced in defence. But the impugned order dated 03.09.2014 reveals that the opportunity to produce the defence has been closed by the court. The order sheet filed along with the application does not reveal that all the methods to ensure the summoning of the witnesses have been exhausted by the court.

If a particular witness is to be summoned and the court issues process with regard to the same, the court has ample powers to ensure compliance of its own order. The earlier order passed by this Court reveals that the two witnesses were held to be relevant in the case. Order of the High Court was also available on record yet the court concerned has not paid due regard to the same and appears to have been content just by giving a few dates for that purpose. It is beyond the power of the applicant to compel the Magistrate to appear in the court. Once it has been held by this Court that the production of these witnesses, who are very relevant, was necessary and they have also been summoned by the court below, it is beyond comprehension as to how without ensuring their production in the court, the opportunity to produce the defence has been closed. In fact, the matter was almost between the court and the witnesses, who was required to be present in the court. It is wholly immaterial that a particular witness is being called at the instance of the prosecution or defence or at the instance of the court itself. The court ought to have been more vigilant about this matter and should have taken proper care to comprehend the spirit of the order passed by this Court. 

It may be apt to keep in view section 233 of the Code, which relates to the rights and opportunity conferred on the accused with regard to his defence in the trial before the court of sessions. Relevant section 233 of the Code may be usefully extracted herein below, which reads as follows:

233. Entering upon defence. (1) ........

(2) .........

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.

Even a fleeting glance on the aforesaid provision shall suffice to make it clear that the accused in a given case may apply for issuance of process for compelling the attendance of any witness or the production of any document or thing if he thinks the same is germane or relevant for the just decision of the case. The use of the word "shall" also makes its manifest that the court also must issue process for the same purpose also and it is mandatory, not optional. The only eventuality contemplated in the provision which may desist or dissuade the court to do so is where the court feels satisfied that the issuing of the process, has been sought for vexatious reasons or to procrastinate the matter or is aimed at bringing the ends of justice to a naught. It has also been required by the legislature that if the court refuses to issue the process desired by the accused, because of the aforesaid reasons, he must record his reasons in this regard as to why he has adopted the extra ordinary course of refusing the issuance of process sought by the accused.

It is so apparent from a perusal of the record that no such extra ordinary circumstances existed, which could have lent vindication to the court to close opportunity of the accused to produce defence. The desirability of the production of the twin witnesses had already been approved by this Court and the application of the accused seeking production of the witnesses in such circumstances definitely cannot be termed to have been inspired by oblique purposes or to have been prompted by any motive of delaying the proceedings or defeating the ends of justice.

Once the court issues some processes, then the compliance of the same order is legal requirement of the court. Unwillingness of the witness to respond to the summons or the reluctance of the witness to appear in the court is no reason to justify the acquiescence of the court in the same. In fact the powers vested in the court to ensure the compliance of its own order are foremost to uphold the rule of law and maintain the administration of justice.

This Court abstains to use stronger words lest it may adversely affect the Presiding Officer or may amount to any stricture. It is hoped that the court shall be more vigilant in future in such matters and shall correctly apply the law and shall utilize its own powers to ensure compliance of its own order. The court cannot just shrug its shoulders in disappointment if the processes issued by the court remains uncomplied with. If the court wants a particular witness to be present, it has sufficient means to ensure the production of the witnesses also.

The impugned order dated 03.09.2014 passed by the learned Additional Sessions Judge, Court No. 10, Meerut stands quashed. The court below is directed to ensure the production of the two witnesses, which were summoned and for whom the processes had already been issued on certain dates.

The instant application under section 482 of the Code is, hereby, allowed with the aforesaid observations.  

Order Date :- 28.11.2014

shailesh