R.K.Rastogi - (1.) -This is an application under Section 482, Cr. P.C., for quashing the impugned order dated 11.4.2008 (Annexure-8) passed by the learned Addl. Sessions Judge/Fast Track Court No. 3, Mainpuri in S.T. No. 203/2000, State v. Neeraj Kumar and others.
(2.) SINCE the point involved in this case is legal one, I have, with the consent of the parties, heard learned counsel for the applicants as well as learned A.G.A., for the State, and I am deciding it on merits at this stage of admission. The facts relevant for disposal of this application under Section 482, Cr. P.C., are that the aforesaid trial is pending against the accused applicants under Sections 498A and 304B, I.P.C. and the prosecution evidence has been recorded in the above case. The case is listed for recording defence evidence. It appears that the applicants moved an application for summoning the B.H.T. (Bed Head Ticket) of the deceased Mamta from the District Hospital, Mainpuri and for summoning Dr. P. K. Pathak who had examined the deceased Mamta on being called in the emergency department of the hospital. They also moved another application for summoning Vipin son of the informant as a defence witness. These applications were rejected by the trial court vide order dated 13.12.2007. Aggrieved with that order the applicants moved Criminal Misc. Application No. 604/08 before this Court. This application was decided by Hon'ble K. K. Mishra, J., vide order dated 17.1.2008 at the admission stage in which he gave one opportunity to the applicants to produce the witnesses on depositing Rs. 500 as costs in the trial court. It is to be seen that in compliance of this Court's order, the applicants deposited Rs. 500 in the Court being expenses of witnesses, and they moved application for summoning witnesses. However, the witnesses could not be produced in the Court and so the trial court passed an order on 26.2.2008 mentioning therein that no steps had been taken for summoning the witnesses and so the opportunity of defence was closed and a date was fixed for hearing of arguments. Aggrieved with the above order, the accused applicants filed Crl. Misc. Application No. 4425/2008 before this Court and this application was also finally decided by Hon'ble Ravindra Singh, J. vide order dated 17.3.2008. He issued a direction to the applicants to deposit Rs. 1,000 within five days for expenses of witnesses and he further ordered that the accused shall give an undertaking that they shall produce witnesses on 24.5.2008 and thereafter no opportunity shall be provided to the accused applicants. The applicants have alleged in para 15 of the present application, which has been supported by an affidavit of Sahdev Singh that they had deposited Rs. 1,000 in the Court on 23.3.2008 and then the Court had passed an order for summoning the witnesses on 10.4.2008 with a direction to take steps within two days for summoning the witnesses and since the witnesses did not appear, the evidence was again closed vide order dated 11.4.2008. It may be mentioned that the applicants had moved an application on 11.4.2008 praying that both the witnesses should be summoned through the Court but this prayer was rejected on the ground that this Court had ordered the applicants to give an undertaking before the trial court that they shall produce the witnesses in the Court and so it was their duty to produce them. Aggrieved with the above order dated 11.4.2008 this application under Section 482, Cr. P.C. has been filed.
(3.) IT is to be seen that Dr. P. K. Pathak is a Government Doctor. He is not a private person and he is to be summoned through the C.M.O., Mainpuri and without permission of his immediate boss, he cannot appear in the Court for his statement. The applicants could not bring Dr. P. K. Pathak for his statement before the Court, and it was for the trial court to summon the Doctor through the C.M.O., Mainpuri for recording his statement before the Court, and so it was not justified in closing the defence evidence on the ground that it was the duty of the accused applicants to produce him in the Court. As regards the witness Vipin, who is son of the complainant, the Court has observed that he was a private person and so the accused should have produced him as a witness and there was no necessity to summon him through Court. No doubt, he is a private person but it is to be seen that he is son of the informant, the adversary of the accused, and so it could not be possible for the accused persons to bring Vipin to the Court personally. He was also to be summoned through the Court and if he fails to appear before the Court after service of summons, coercive process can be issued against him, and the Court was not justified in rejecting the prayer for summoning Vipin on the ground that he is a private person and so he should have been produced by the applicants. It is also to be seen that the applicants have also deposited Rs. 1,500 for expenses of the witnesses and since both these witnesses namely Dr. P. K. Pathak and Vipin are not within the control of the accused persons, it is the duty of the Court to summon them as defence witnesses, and if they fail to appear, then coercive measures may be taken against them in accordance with law.;