Alok K. Singh, J. - (1.) - This application under Section 482, Cr. P.C. has been filed for quashing the orders dated 9.5.2005 and 30.6.2006, passed by Special C.J.M., Customs, Lucknow in complaint case No. 801 of 2002 under Sections 500 and 501, I.P.C. Anant Kumar Singh v. Raman Kirpal and others, relating to Police Station Hazaratganj, district Lucknow. It has been further prayed that an order be passed directing the Court below to summon the witnesses under Section 311, Cr. P.C. or the petitioner be himself given an opportunity to produce his defence witnesses.
(2.) BRIEFLY stated the facts giving rise to this application are that an application was moved for summoning three defence witnesses namely M/s. Shiela Reddy, Sri Sanjeev Rastogi and Vijay Simha. This application was disposed of on 9.5.2005 with a direction to the accused persons to produce the defence witnesses themselves, if they so desire and for that purpose several dates were also fixed for defence evidence. But no evidence was produced in defence. This order was also not challenged till the filing of the instant application under Section 482, Cr. P.C. on 21.8.2006. When no evidence was produced even after giving several dates, the defence evidence was closed. Then on 13.6.2005 an application under Section 315, Cr. P.C. was moved for permitting one of the accused namely the petitioner to be examined as defence witness which was allowed and his evidence was recorded. Thereafter another application dated 19.5.2006 (Annexure-4) was moved under Section 311, Cr. P.C. for summoning one witness namely Sri Sanjeev Rastogi, Photographer which was rejected vide order dated 30.6.2006 (Annexure-1). Feeling aggrieved by both the aforesaid orders the instant application under Section 482, Cr. P.C. has been moved to invoke the inherent powers of this Court. Heard Sri R. P. Mishra, learned counsel for the petitioner, learned A.G.A. and Sri I. B. Singh, learned counsel for the opposite party No. 2. As far as the order dated 9.5.2005 is concerned, it was partially in favour of the petitioner and if he was aggrieved at all he could have challenged it. But indisputably this order was not challenged for about one and half years for the reasons best known to the petitioner. The learned counsel for the petitioner argued that in view of Section 243 (2) of Cr. P.C. if the accused, after he has entered upon his defence applies to the Magistrate to issue any process for compelling the attendance of any witness for the purposes of examination, the Magistrate shall issue such process unless he considers 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 and such ground which shall be recorded by him in writing. The learned counsel also placed reliance on the following case laws in this regard, Ram Achal Yadav v. State of U. P., Lucknow, 1986 LCR 175 and Vinay Mohan alias Mannu and another v. State of U. P., 1986 LCR 53.
(3.) ON the other hand it was argued that in the application dated 9.5.2005 no reason whatsoever was assigned for summoning the three witnesses. Any subject-matter was also not disclosed on which these witnesses were supposed to adduce evidence. The address given of the three witnesses were also incomplete. It is further submitted that this application was moved only with a view to delay the proceedings but even then the court below afforded sufficient opportunity to produce witnesses of defence for about one and half years. But neither any defence witness was produced nor this order was challenged. In respect of subsequent order dated 30.6.2006, the learned counsel for the petitioner argued that the prayer was made for summoning only one witness namely Sri Sanjeev Rastogi, Photographer, under Section 311, Cr. P.C. but it was rejected without assigning sufficient reason. The learned counsel for the other side vehemently argued that the provisions under Section 311, Cr. P.C. are discretionary and the learned lower court after taking into consideration totality of the circumstances has given out detailed reasons for rejection of the application. During the course of arguments the learned counsel for opposite party No. 2 vehemently maintained that the instant application has been moved only with a view to delay the proceedings which are pending for the last about nine years. In this regard he also submitted a list of dates which is reproduced hereinbelow : List of Dates Sl. No. Dates Event details 1. 29.7.1997 Complaint filed. 2. 25.9.1997 Cognizance taken. 3. 22.6.1999 Last of the 5 accused appeared. 4. 17.7.1999 Date fixed for statement of the accused. 5. 31.8.1999 Applicant moved by accused to consolidate all three cases for having same subject-matter. 6. 27.1.2001 Cases consolidated 7. 23.4.2001 Application filed by accused to stop the proceeding due to pendency of a revision against the order of the Session Judge on a separate complaint of the State Government about the same publication. 8. 28.11.2001 Above application rejected. 9. 16.3.2002 Revision filed against the above order rejected. 10. 6.5.2002 Statement of P.W. 1 begun. 11. 4.1.2003 Application of accused to keep evidence in three files separately rejected. 12. 6.1.2003 Fresh application filed by the accused to stop the proceeding due to pendency of a revision against the order of the Session Judge on a separate complaint of the State Government about the same publication again rejected. 13. 8.1.2003 Cross-examination of P.W. 1 started. 14. 26.4.2003 Pros. evidence closed. 15. 17.5.2003 Date fixed for Cr. P.C. 313 statement. 16. 16.8.2003 Yet another application filed by accused to stop the proceeding due to pendency of a revision against the order of the Session Judge on a separate complaint of the State Government about the same publication. 17. 1.10.2004 The same rejected. 18. 15.10.2004 Statement under Section 313, Cr. P.C. recorded. 19. 4.11.2004 Date fixed for defence evidence. No evidence given. 20. 4.6.2005 Evidence closed when no evidence was produced on giving 7 dates (opportunities). 21. 13.6.2005 Application filed by accused under Section 315, Cr. P.C. for permitting him to be examined. 22. 27.6.2005 Above application allowed. 23. 12.7.2005 Examination of accused began. 24. 5.5.2006 Cross-examination closed.;