POONAM SRIVASTAV, J. - (1.) 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.
(2.) 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 record-keeper of the Sugar Mill to show that on the relevant date PW-1 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."
(3.) 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 PW-1 and ample opportunity was given to the defence to cross-examine. These questions could have been elucidated by defence from the witness in his cross-examination. 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.;