Raj Kumar and another vs State of U.P. and another

Mrs. Poonam Srivastav, J.—Heard Sri Abhitab Kumar Tiwari, learned Counsel for the applicants, Sri S.M. Nazir Abbas Abedi, Counsel for the opposite party No. 2 and learned A.G.A. for the State at length.

Counter and rejoinder affidavits have been exchanged which are on record.

The instant application under section 482 Cr.P.C. has been filed challenging the order dated 3.1.2006 passed by the Additional Sessions Judge, Court No. 15, Meerut in Session Trial No. 359 of 2002 State v. Raj Kumar and others, under section 302 IPC, Police Station Daurala. District Meerut.

A First Information Report was lodged against the applicants under section 302 IPC regarding an occurrence that took place on 3.12.2001 at about 9.15 A.M. The deceased Mahipal was killed by the accused while he was coming back from Sugar Mill after supplying sugarcane. A First Information Report was registered at case Crime No. 551 of 2001 at 10.30 A.M. on the same day. The trial commenced after framing of the charge, the prosecution and defence witnesses were examined. Date fixed was 13.12.2007 for arguments.

Learned Counsel for the applicants submits that an application was moved on behalf of the applicants for summoning the recordkeeper of the Sugar Mill to show that on the relevant date PW1 had not supplied any sugarcane and carried it on his Buggi, specially in between 8.00 to 11.00 A.M. This was necessary to substantiate the defence case. In view of the specific prosecution case, the concerned clerk along with the register were liable to be summoned who was deployed in the morning of 3.12.2001, at the date and time of occurrence. The learned Sessions Judge rejected the said application on the ground that the applicants have already examined five witnesses and also that in case they desire to supply certain material to establish that P.W. 1 had not supplied any sugarcane on the relevant date, they can also obtain information from the Sugar Mill as per rules of the office. Learned Counsel for the applicants has placed reliance on section 233 Cr.P.C. which reads as under :

"233. Entering upon defence.(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."

I am not in agreement with the submissions made by the learned Counsel for the applicants since the application has been annexed along with the affidavit filed in support of the application under section 482 Cr.P.C. It does not amount to an application for compelling the attendance of any witness or production of the documents. Rishipal was examined as PW1 and ample opportunity was given to the defence to crossexamine. These questions could have been elucidated by defence from the witness in his crossexamination. It is also noted that in the event, this fact that Rishipal was not present at the time of occurrence and he had not gone to supply the sugarcane on the relevant date, there are ample evidence on record to contradict the prosecution version as well as dismantle the prosecution case and create a doubt regarding presence of Rishipal on the relevant date, obviously it is not the defence which stands to loose but it is otherwise. Section 233(3) Cr.P.C. provides for issuance of process, but this can also be declined if the concerned Sessions Judge considers for reasons to be recorded that such an application should be refused. This itself makes the provision ''discretionary'' and since this discretion has been exercised by the learned Sessions Judge, I do not think it proper to interfere at this stage.

The Apex Court in a decision State of M.P. v. Badri Yadav and another, AIR 2006 SC 1769 has held that section 233 Cr.P.C. can not be understood as compelling the attendance of any witness. The Court is not powerless and could very well exercise its discretion and refuse to do so. The Court can refuse such relief if it is of the view that the prayer is made for the purpose of vexation or delay or for defeating the ends of justice. For a ready reference, paragraph 14 of the said judgment is quoted below :

"14. Section 233 itself deals with entering upon defence by the accused. The application for recalling and reexamining persons already examined, as provided under section 311, Cr.P.C., was already rejected. The power to summon any person as a witness or recall and reexamine any person already examined is the discretionary power of the Court in case such evidence appears to it to be essential for a just decision of the case. Under section 233, Cr.P.C. the accused can enter upon defence and he can apply for the issue of any process for compelling the attendance of any witness in his defence. The provisions of subsection (3) of section 233 cannot be understood as compelling the attendance of any prosecution witness examined, crossexamined and discharged to be juxtaposed as DWs. In the present case PW8 and PW9 were juxtaposed as DW1 and DW2. This situation is not one what was contemplated by subsection (3) of section 233, Cr.P.C."

I can not also overlook the fact the matter relates to the year 2001 and the trial is pending since the year 2002 and it is a murder case under section 302 IPC. Already much delay has been caused in disposal of the trial. The Apex Court has time and again emphasized on the expeditious disposal of the session trials specially in such cases which involves heinous offences. In the case of Rai Deo Sharma v. State of Bihar, AIR 1998 SC 3281 the Apex Court held that there are serious consequences where the trials are unnecessarily delayed. Following the decisions of Madhu Mehta v. Union of India, 1989 (26) ACC 579 (SC)=AIR 1989 SC 2299 and Abdul Rehman Antulay v. R.S. Nayak, 1992 (1) SCC 225 the Apex Court has laid emphasis that the trial should not be delayed and speedy trial is a right of the accused and also in public interest and serves the social requirement of the present day. In fact it is in the interest of all concerned that the guilt or innocence of the accused is determined as early as possible.

After taking into consideration the entire facts and circumstances of the case and hearing the respective Counsels, I do not find any illegality in the impugned order. No good ground has been made out for exercising inherent jurisdiction under section 482 Cr.P.C. There is no merit in the application and it is accordingly dismissed. The interim order stands discharged.