Rashid Ahmad @ Taufeeq vs State Of Uttarakhand

N.S. Dhanik, J

The present criminal misc. application under Section 482 of Cr.P.C. with a prayer to quash the impugned order dated 06.03.2021 passed by Special Judge, N.D.P.S. Act, Dehradun in Special Sessions Trial No. 23 of 2014, "State v. Riyasat Ali & others" be quashed only to the extent of not calling the witnesses at serial nos. 1, 3, 4, 5, 6, 7, 9 etc. in the list (paper no. 38kha) as defence witnesses before the trial court and also allow the application of application (paper no. 35 kha) intoto.

Learned counsel for the applicant submits that the impugned order passed by the trial court is illegal and arbitrary. He further submits that the defence witnesses shown at serial nos. 1 to 9 etc. in the list (paper no. 35 kha) are the material witnesses in the present case, but they are beyond the control of applicant and therefore, it is the duty of trial court to summon the remaining witnesses in the list of defence witnesses for just and fair decision of the case but the trial court refused to summon all the witnesses of defence as per the list (paper no. 35 kha).

Learned counsel for the applicant further submits that the application of the applicant (paper no. 36 kha) was rejected by the trial court on the ground that the call details of those witnesses are in violation of right of privacy of those persons but it is the well settled law that the court would give equal treatment to the evidence of the prosecution and defence evidence and in case, the prosecution can obtain the call details of accused persons to prove their guilt, then the defence has also right to obtain the call details of the prosecutions' witnesses and in these circumstances, the right of privacy will not come in the criminal trial, either for the prosecution witnesses or for the defence witnesses.

Learned counsel for the applicant submits that the trial court did not look into the provisions of Section 233 (3) of Cr.P.C. and as per the Section 233(3) Cr.P.C. only three grounds are available to the trial court for rejecting the application of summon of defence witnesses, first is vexation, second is delay and third is defeating the ends of justice, but in the present case, the application of applicant has been rejected on the ground of violation of rights of privacy.

Section 233 (3) Cr.P.C. is reads as under:

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.

Learned State Counsel submits that the impugned order passed by the trial court is the well reasoned order and the order impugned needs no interference.

Considering the submissions advanced by learned counsel for the parties, the present criminal misc. application is disposed of with a direction to the trial court that the trial court shall re-consider the rejecting part of the order impugned in the light of Section 233 (3) Cr.P.C.