- (1.) Heard the learned counsel for the applicants and the learned AGA for the respondent and perused the record. This is a petition under section 482 CrPC for quashing the order dated 24.7.2010 (Annexure No. 1) passed by the learned Additional Sessions Judge, Fast Track Court No. 2, Fatehpur in S.T. Nos. 131 to 134 of 2006, State v. Jasimullah and others. In the aforesaid session trial, the applicants are accused. They moved an application for summoning one Girdhari Lal, the then district Magistrate, as a defence witness for proving the plea of alibi. It was contended on behalf of the applicants that at the time of the occurrence, co-accused Wali Ullah, who was an M.L.A., was present with the District Magistrate, in connection with a cycle rally, and at that time the applicants were also there alongwith the aforesaid M.L.A. Therefore, the evidence of Girdhari Lal was necessary for dispensation of justice. It may not be out of context to mention that coaccused Wali Ullah had filed criminal misc. application No. 14117/2009 Wali Ullah v. State of U.P. & another, which was dismissed on 25.8.2009 by Hon'ble Surendra Singh, J. It appears that by way of the said petition, the order dated 24.4.2009 passed by the trial court was challenged, whereby two witnesses, namely, Naseem Ullah and Mohd. Kamil were directed to be summoned as defence witnesses and remaining nine witnesses were declined to be summoned. It may also be mentioned that the present applicants had also filed petition No. 23381 of 2009 against the same order, which was partly allowed by Hon'ble S.K. Jain, J. vide the order dated 6.10.2009 and the trial court was directed to summon all those witnesses to whom the applicants wanted to summon in their defence by the application, paper No. 311-B.
(2.) The learned Additional Sessions Judge has very categorically observed in his order dated 24.7.2010 (Annexure No. 1) that the witnesses cited in the list, paper No. 311-B, has already been examined as defence witnesses and Mr.Girdhari Lal, the then District Magistrate was not cited in that list, therefore, the prayer of the applicants for summoning the then District Magistrate as a defence witness was liable to be discarded. The learned Additional Sessions Judge further observed that the case of co-accused Wali Ullah has been separated,which is pending as Special Trial No. 8 of 2007, therefore, there was no justification nor sufficient ground to summon the District Magistrate as a defence witness. The learned counsel for the applicants submitted that the investigating officer had interrogated Mr. Girdhari Lal, the then District Magistrate, Fatehpur under section 161 CrPC during the investigation, who had admitted that co-accused Wali Ullah was present with him, therefore, his non-examination may result in failure of justice in the case. The learned AGA, on the other hand, submitted that if the statement of the then District Magistrate recorded under section 161 CrPC is taken at its face value, it should be of no help to the applicants because the District Magistrate had nowhere stated that the applicants were also present alongwith the aforesaid M.L.A. The case of coaccused Wali Ullah has already been separated, therefore, examination of the then District Magistrate as a defence witness is not necessary for proper decision of the case. The learned AGA further submitted that in the list, paper No. 311-B regarding the defence witnesses, the name of the District Magistrate is not mentioned. The application for summoning him has been moved for the purpose of vexation and delay and also for defeating the ends of justice, therefore, the same can not be allowed. In my opinion, section 233 CrPC confers a right on the accused to enter on his defence and adduce any evidence he may have in support thereof. Sub-section (3) of section 233 CrPC further provides that if the accused applies for 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. In other words, a prayer for summoning a witness or production of any document or thing in defence should be refused in a case where the purpose behind moving the application for summoning the witness or producing the document or the thing is vexatious or is to cause delay or defeat the ends of justice. Speedy trial is one of the main theme of Article 121 of the Constitution of India, therefore, any attempt to delay the trial must be deprecated.
(3.) In the present case, the applicants were called upon to enter on their defences. Accordingly they furnished the list of the witnesses (Paper No. 311-B) but the learned trial court summoned only two of the witnesses shown in the list but this Court allowed the petition No. 23381/2009 filed under section 482 CrPC and permitted the applicants to examine all the witnesses mentioned in the list. I fail to understand as to why the name of Girdhari Lal the then District Magistrate was not mentioned in the list. The learned counsel for the applicants submitted that under section 311 CrPC the court has power to summon any person as a witness whose evidence is essential for just decision of the case, hence the statement of Girdhari Lal, the then District Magistrate is necessary for proving the plea of alibi. Therefore, rejection of the application on the ground that in the earlier list, paper 311-B, the name of the then District Magistrate was not mentioned and this Court had permitted summoning of those witnesses only, was not proper. It is true that the trial court had power under section 311 CrPC to summon the aforesaid witness and this legal position can not be disputed but keeping in view the fact that the then District Magistrate has nowhere stated under section 161 CrPC that the applicants were also present with him at the time of the incident and had merely stated that Wali Ullah the then M.L.A. was present with him and as such statement of the aforesaid witness does not appear to be necessary for dispensation of justice in the case and as such no useful purpose would be served by examining him so far as the present applicants are concerned. Therefore, the prayer for summoning the thenDistrict Magistrate Girdhari Lal does not appear to be bonafide and seems to have been made merely to cause delay in the disposal of the case.;