Arun Tandon - (1.) HEARD learned counsel for the revisionist and learned Additional Government Advocate on behalf of respondent No. 1.
(2.) THIS revision is directed against an order of the Trial Court/Additional Sessions Judge, Court No. 3, Bijnor, dated 5th May, 2009, passed in Sessions Trial No. 651 of 2004 under Sections 302, 201 and 364 of the Indian Penal Code wherein the application made by the accused under Section 311 of the Criminal Procedure Code for summoning of witnesses, namely, Rati Ram, Khalil Ahmad and Surendra for examination as they were material witnesses of the recovery of the arm, evidence of last seen and the inquest, has been rejected. Under the impugned order, the Additional Sessions Judge has recorded following findings : (a) it is for the prosecution to produce such witnesses as it likes and no application under Section 311 of the Code of Criminal Procedure at the behest of the accused for summoning the witnesses can be maintained ; (b) the entire evidence of the prosecution is already over ; and (c) there is an order of the Hon'ble High Court dated 30th January, 2009, passed in Revision No. 3251 of 2008, directing that the trial court may conclude the proceedings within three months. The contention raised on behalf of the revisionist is opposed by the learned Additional Government Advocate and it is stated that the court below has rightly directed that the accused cannot insist upon the production of the witnesses which have not been produced as witnesses by the prosecution, nor the aforesaid three persons were shown as witnesses in the charge-sheet. Reliance in that regard has been placed by the learned Additional Government Advocate upon Section 91 of the Code of Criminal Procedure read with Section 165 of the Indian Evidence Act.
(3.) I have considered the submissions made by the learned counsel for the parties and have gone through the records of the present writ petition. I am of the considered opinion that the issue which is up for consideration before this Court is as to whether under Section 311 of the Criminal Procedure Code the accused has a right to summon any person as a witness, although he may not be named in the charge-sheet, and may not have been produced as witness by the prosecution.;