H.R.PANWAR, J. - (1.) HEARD learned counsel for the parties.
(2.) THE petitioner by this petition under Section 482 Cr.P.C. challenged the order of the learned Sessions Judge, Rajsamand, whereby he has refused to summon the defence witnesses as per the list of witnesses submitted by the accused petitioner in Sessions Case No. 12/2000. The main grievance of the petitioner is that he has already filed the list of defence witnesses and requested the learned Trial Court to summon them. Vide order impugned, learned Trial Court has refused to summon the defence witnesses on the ground that such an application has not been filed prior to entering of the defence evidence as also the petitioner has not given undertaking to pay the expenses of the defence witnesses sought to be summoned.
(3.) BRIEFLY stated the facts of the case which are necessary for the disposal of this misc. petition are that the accused petitioner is facing trial for the offence under sections 8/15 of the N.D.P.S. Act. After having availed 14 opportunities the prosecution closed evidence and the statement of accused petitioner was recorded on 14.3.2001 and case was posted for defence evidence of witnesses on 29th March 2001. On the date fixed for defence witnesses i.e. 29th March 2001, an application on behalf of the petitioner was moved for summoning 4 witnesses as defence witnesses. Learned Trial Court refused to summon those named defence witnesses and accorded an opportunity to the accused petitioner to produce defence witnesses at his own. Sub-section (2) of Section 243 of Cr.P.C. provides - "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 purpose of examination, or the production of any document or other thing, 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 shall be recorded by him in writing : Provided that when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice." ;