S.B. Cr. Misc. Petition No.2386/2010 Laxmi Narain Vs. The State of Raj. Dated : 13.12.2010 HON'BLE MR. MAHESH BHAGWATI,J. Mr. Trilok Choudhary, for the petitioner. Mr. Amit Punia, PP for the State. *** Challenge in this criminal misc. petition is to the order dated 22nd November, 2010 whereby the learned Additional Sessions Judge (Fast Track), Sawai Madhopur ordered to summon witnesses namely Jaidev, Babu Singh, Ramkishan and Ramratan through a bailable warrant of Rs.500/- and declined to summon the witnesses namely, Dr. Ajay Meharwal, Ghanshyam Meena Compounder, Brijmohan, Rambabu and Ramniwas. 2. Heard the learned counsel for the petitioner as also the learned Public Prosecutor appearing for the State and carefully perused the impugned order. 3. Learned counsel for the petitioner canvassed that he implored the learned trial Court to summon those witnesses, who had been examined by the Investigating Officer and their statements were recorded under Section 161 of Cr.P.C., but the prosecution did not produce them. He has got a right to summon those witnesses in defence. Apart that, he also furnished the plea of alibi before the learned trial Court stating that on the date of occurrence he was admitted in Primary Health Centre, -2- Hantra, situated at Nadbai w.e.f 21st July, 2008 to 24th July, 2008. The admission and discharge tickets were prepared by Ghanshyam Meena Compounder. Their evidence is very essential for the just decision of the case. These witnesses ought to have been summoned by the learned trial Court but sans assigning any reason, declined the petitioner's prayer. Hence, the impugned order deserves to be set aside to the extent of non summoning the witnesses namely, Dr. Ajay Meharwal, Ghanshyam Meena Compounder and others. 4. E converso, the learned Public Prosecutor appearing for the State took me through para Nos. 4,5,6 and 7 of the impugned order and contended that during investigation Dr. Ajay Meharwal was found to have issued a forged certificate with regard to the admission of the accused in Primary Helth Centre Hantra, for which a case under Sections 197 and 218 of IPC was registered against them. The investigation is almost complete in that case and the case is at the stage of obtaining prosecution sanction from the competent authority. The learned trial Court did not deem expedient in the interest of justice to summon witnesses namely, Dr. Ajay Meharwal and Ghanshyam Meena-Compounder. The learned trial Court declined to summon the witnesses namely, Rambabu and Ramniwas also on the ground -3- that albeit their names were mentioned in the application but it was not shown as to how they were related to the occurrence of the instant case. The learned Public Prosecutor has defended the impugned order and stated the same to be just and proper, which warrants no intervention. 5. Adverting to the facts of the instant case, I deem it just to reproduce Sub-Section 3 of Section 233 of Cr.P.C.,1973, which is related to the evidence for defence. 6. Sub-Section 3 of Section 233 of Cr.P.C. reads thus: “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.” 7. The said provision of Cr.P.C. confers discretion on the Sessions Judge to decide as to which of the witness is required to be summoned and which of the witness cited by the accused is not required to be summoned in defence. The learned trial Court is found to have assigned the cogent reasons for not summoning the witness namely, Dr. Ajay -4- Meharwal, Ghanshyam Meena-Compounder, Brijmohan, Rambau and Ramniwas. The learned trial Court also did not find any justification to summon Dr. Ajay Meharwal as he himself has been facing investigation for the offences under Section 197 and 218 of IPC, for making false entry in the record with regard to the admission of the accused petitioner. The impugned order rendered by the learned trial Court is found to be just and proper. 8. Learned counsel for the petitioner has cited one judgment delivered by this Court in the case of Gurmeet Singh and Ors Vs. State of Raj. reported in 2006(2) Cr.L.R.(Raj.) 1369. In this case, the Court found that summoning of witnesses will not cause any delay or defeat the ends of justice. Observing the same, this Court directed the learned trial Court to summon these witnesses, as enumerated in the judgment. The facts of this case are altogether different to the facts of the instant case and the judgment cited by the learned counsel for the petitioner does not hold good in the instant case. The impugned order is found to be just and apt, which suffers from no infirmity. To my firm view, it warrants no intervention. 9. For the reasons stated above, the criminal misc. petition totally being devoid any substance and the same being -5- bereft of any merit, deserves to be dismissed, which stands dismissed accordingly. (MAHESH BHAGWATI)J. pcg