Allahabad High Court
Chinkoo @ Chandrika Prasad vs State Of U.P. Thru. Prin. Secy. ... on 28 June, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 10
Case :- APPLICATION U/S 482 No. - 3862 of 2022
Applicant :- Chinkoo @ Chandrika Prasad
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Civil Secrtt. Lko
Counsel for Applicant :- Manoj Kumar Singh
Counsel for Opposite Party :- G.A.
Hon'ble Manish Mathur,J.
Heard learned counsel for petitioner and learned AGA appearing on behalf of opposite parties State.
Petition under Section 482 Cr.P.C. has been filed against the order dated 19.05.2022 passed in sessions trial whereby evidence of petitioner-accused has been closed and the matter has now been fixed for hearing.
Learned counsel for petitioner submits that an application was filed on behalf of petitioner on 25.04.2022 for production of evidence, particularly the panel of doctors required to corroborate the submission of petitioner that he was a juvenile at the time of occurrence of incident. It is submitted that while allowing the application vide order dated 25.04.2022, the court concerned has directed the cost of production of witnesses to be borne by the petitioner. It has also been submitted that on another application registered as B-66, direction has again been passed by the court concerned on 05.05.2022 for production of defence witnesses at the cost of the petitioner-accused.
Learned counsel has further submitted that on account of failure to deposit the cost for production of witnesses, the impugned order has been passed particularly indicating that the petitioner has not taken any steps for effective service upon the witnesses due to which his opportunity to the defence has been closed.
Learned counsel has placed reliance upon judgment rendered by this Court in the case of Mahe Aalam versus State of Uttar Pradesh reported in 2005 Criminal Law Journal 4554 to the effect that the court is not empowered to insist that expenses of witnesses sought to be examined by the accused should be paid or deposited by him. It is submitted that in view of aforesaid, there was no occasion for the court concerned to have insisted upon the petitioner-accused to deposit cost for production of witnesses.
Learned AGA appearing on behalf of State has submitted that the sessions trial pertains to the year 1998 and is one of the oldest trial in the said district. It is submitted that a bare perusal of the impugned order will make it apparent that delay is being occasioned in disposal of the trial due to the non-cooperative attitude of the petitioner and therefore there is no occasion to grant indulgence.
Upon consideration of submissions and material available on record, it is apparent that by means of impugned order dated 19.05.2022, opportunity to defence by the petitioner-accused has been closed primarily on account of fact that steps were not taken for effecting service upon the witnesses. By means of earlier orders dated 25.04.2022 and 05.05.2022, it appears that application of petitioner-accused for production of witnesses was allowed subject to cost being borne by him.
The aspect of the matter whether the cost for summoning of witnesses can be imposed upon the accused has already been dealt with by Coordinate Bench of this Court in the case of Mahe Aalam (supra) in which this court after considerable evaluation of pertinent case laws has held that the Court is not empowered to insist that expenses of witnesses sought to be examined by the accused be deposited or paid by the accused. It has been held that the only ground on which summoning of witnesses can be refused is when the court reaches a satisfaction that summoning of witness is only for the purpose of delaying the trial or is vexatious or would defeat the end of justice but even then the reason for rejecting the summoning of witnesses on this ground are required to be indicated by the Court.
Upon applicability of aforesaid judgment in the present facts and circumstances of the case, it is clear that opportunity to lead defence by the petitioner-accused has been closed by the Court concerned only on account of fact that cost for summoning of witnesses was not deposited by him due to which effective steps could not be taken for service upon the witness. Evidently the order impugned is against the dictum of this Court in the case of Mahe Aalam (supra) since the accused cannot be saddled with the cost for production of witnesses and therefore closure of his defence on that account cannot be a good ground.
It is also relevant that the petitioner's applications for summoning of relevant witnesses has already been allowed by means of the orders dated 25.04.2022 and 05.05.2022. Since it had already been held hereinabove that the petitioner could not have been saddled with the cost of production of witnesses, it is directed that the trial court shall require production of the aforesaid witnesses without saddling the petitioner with the cost for such production of such witnesses.
In view of aforesaid, the order impugned dated 19.05.2022 passed in Sessions Trial No.28 of 1998 "State versus Chinkoo" Case Crime No.238 of 1997, under Section 302, 201 IPC, Police Station Ikauna, District Shrawasti is set aside.
A further direction is issued to the trial court to require the presence of witnesses indicated in the application of the petitioner which has already been allowed herein before. However since the trial is one of the oldest in the District, it is expected that the aforesaid proceedings shall be taken expeditiously and the trial itself may be concluded preferably within a period of six months without granting any unnecessary adjournment.
The petition as such stands allowed at the admission stage itself.
Order Date :- 28.6.2022
Subodh/-
