GARG, J. - (1.) THIS misc. petition has been filed by the accused petitioners against the order dated 6. 2. 2002 passed by the learned Additional Sessions Judge No. 2, Hanumangarh in Sessions case No. 41/2000 by which he closed the defence evidence.
(2.) IT arises in the following circumstances: In respect of FIR No. 221/2000 of the Police Station, Tibi, Distt. Hanumangarh, a challan was filed for offence under Section 302 IPC against the accused petitioner Prithvi Raj. Thereafter the prosecution filed an application under Section 319 Cr. P. C. and that application was accepted and the petitioner No. 1 Mahendra Singh and Petitioner No. 2 Surjeet Singh were further added as accused. At the trial, the evidence of the prosecution as closed and the case was fixed for recording the statement of accused petitioners under Sections 313 Cr. P. C. on 20. 1. 2001 and on that day, statements under Section 313 Cr. P. C. of the accused petitioners were recorded and the case was filed for recording the defence evidence on 3. 10. 2001. On 29. 9. 2001, an application was filed on behalf of the accused petitioners No. 1 and 2 along with list of 10 defence witnesses. Vide order dated 3. 10. 2001 that application was accepted and the witnesses No. 1 to 5 mentioned in that list were summoned through bailable warrant of Rs. 500/- and the case was fixed for recording the defence evidence on 22. 10. 2001. On that day, evidence of no defence witness was recorded and the case was again fixed for recording the defence evidence on 3. 11. 2001 and on that day, statements of three defence witnesses were recorded. As per the order-sheet dated 3. 11. 2001, it appears that the counsel for the accused submitted that the witness Harnek Singh would be produced by them and the case was fixed for 9. 11. 2001 for recording the statements of remaining defence witnesses. On 9. 11. 2001 no defence witness was produced and the case was fixed for 14. 12. 2001 and on that day none was present and even P. O. was not present and the defence witnesses were ordered to be summoned. On 5. 1. 2002, statement of D. W. 4 was recorded and from the order-sheet, it appears hat accused petitioners wanted to examine Gurcharan Singh, Liyakat Ali, Purushottam and Mst. Jangir Kaur in defence and these witnesses were ordered to be summoned through bailable warrants in the sum of Rs. 500/- and it was further ordered that they could be produced by accused petitioners themselves and the case was fixed for recording their evidence on 18. 1. 2002. On 18. 1. 2002, the defence witnesses were not produced and it was written in the order-sheet that the counsel for the accused persons submitted that they would produce defence witnesses themselves and the case was fixed for recording the evidence on 6. 2. 2002.
(3.) FROM the order-sheet dated 6. 2. 2002, it appears that no witness in defence was produced and since the witnesses were to be produced by the defence themselves and they were not produced and many opportunities had been given to the defence to produce them, in these circumstances, prayer for summoning the rest defence witnesses was refused and defence evidence was closed. Aggrieved from the order dated 6. 2. 2002, this misc. petition has been filed and in this misc. petition the main contention of the learned counsel for the accused petitioners is that as per provisions of clause 2 of Section 234 Cr. P. C. , if the accused makes a prayer for summoning the defence witnesses, the Court is bound to summon them and, therefore, the order dated 6. 2. 2002 whereby the learned trial Judge refused to summon the defence witnesses is without jurisdiction and should be set aside. In my opinion, the argument raised by the learned counsel for the petitioner has to be rejected because of the following reasons: ;