IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.240 of 2009 RAKESH KUMAR PANDEY @ SONU Versus 1. THE STATE OF BIHAR 2. KRISHNA NANDAN TRIPATHY ---- For the Petitioner :Mr. Pushkar Narain Shahi & :Mr. Sunil Kumar Pandey For the State :Mrs. Indu Bala Pandey For the O.P. No.2 :Rakesh Ranjan, Advocate ----- 5. 14.07.2009 Heard counsel for the parties. The petitioner, who is an accused of Deoriya P.S.Case 38/06 dated 13.9.2006(giving rise to Sessions Trial No.73/2007), has filed the present revision application calling in question the order dated 6.1.2009, passed by the learned Addl. Sessions Judge- cum-Fast Track Court No. IV, Muzaffarpur in S.T.No.73/07. By the said order the application filed on behalf of the petitioner under section 233(3) of the Code of Criminal Procedure (hereinafter referred as the „Code‟) for summoning the then officer-in-charge (Mitesh Kumar) of Deoriya police station as a witness, has been considered and rejected. Before proceeding further, it would be relevant to quote the provision of law invoked by the petitioner in court below: “233(3) If the accused applies for 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 - 2 - defeating the ends of justice.” It appears that the petitioner was put on trial for having committed an offence punishable under section 306 IPC. The trial of the case was taken up. The prosecution examined as many as nine witnesses. The last witness on behalf of the prosecution was examined on 30.7.2008. The defence thereafter also adduced oral evidence. An application under section 311 of the Code thereafter appears to have been filed by the petitioner with a prayer that Shri Mitesh Kumar who was during the relevant time posted as the officer-in-charge of Deoriya police station(now posted at Galgalia police station within the district of Kishanganj) be summoned as a court witness to depose in the court as his deposition would be necessary to arrive at a just decision in the case. The said application was considered and by a proceeding dated 26.9.2008, the learned trial court rejected the said application filed on behalf of the petitioner. Learned counsel for the petitioner has produced before this Court copy of the said order (which is part of the record of Cr.Rev. No.1209 of 2008). While rejecting the said application, the learned trial court, on consideration of the entire materials available on record, held as under: “This Court on no ground finds it proper and desirable to find any merit in the petition of the accused. The case is on the final track of disposal and the contention of the prosecution that it is a device by the defence to delay the disposal of the case appears to be of some merit. Petition is, therefore, devoid of any - 3 - merit and it is accordingly rejected and disposed of.” As stated before this Court, the defence also adduced oral evidence and as many as two defence witnesses were examined on behalf of the accused petitioner. It is stated at the Bar and quite fairly that the name of the aforesaid person (who is sought to be summoned for examination as a court witness) never appears as a witness in the charge sheet or the list of witnesses proposed to be examined on behalf of the defence. The last witness on behalf of the defence was examined on 10.9.2008. Records indicate and the parties appearing before this Court admit that the petitioner assailed the aforesaid order dated 26.9.2008 in Cr.Rev. No.1209 of 2008. This court under order dated 11.11.2008, rejected the said revision application having found and held that there was absolutely no merit in the application justifying interference. Eleven days thereafter, it appears that another application under section 233(3) of the Code was filed on behalf of the petitioner (Annexure-2) for summoning the aforesaid person as a witness. Paragraphs 3 and 4 of the said application need attention. They read thus: “3. That unfortunately for the accused that the O/C is not a charge sheet named p.w. causing great prejudice to your petitioner. 4. That the ends of justice require that the said O/C of Deoriya p.s. be examined in this case as D.W.” The learned trial court considered the application and - 4 - by the impugned order dated 06.01.2009 rejected the same. The learned trial court in the impugned order observed as under: “Mention has to be made in this regard that earlier a petition has been filed on 16.08.2008 on behalf of the accused u/s 311 Cr.P.C. praying therein same prayer made in the petition which is proposed to he dealt with about the summoning of the said Mitesh Kumar and the court by its order dated 20.08.08 after considering the materials on the record rejected the petition and fixed up the case for statement of the accused person u/s 313 Cr.P.C.. In fact filing of this petition appears to be a colourable act of the defence i.e. the same prayer has been made earlier u/s 311 Cr. P.C. and now u/s 233 Cr.P.C.. Once again the prayer is rejected as it is nothing but to impede the further proceeding of the case which has to be disposed off as the accused in custody since long” Both the parties agree that the case is now fixed for final argument. Learned counsel for the petitioner referring to the relevant provisions of the Code submits that there is absolutely no fetter on the Court in summoning a person to attend the Court as a witness if it is found that the examination of such witness is necessary for arriving at a just decision of the case. It is thus contended that going by the materials available in the case diary of the present case, the examination of the aforesaid person as a witness was/is necessary for arriving at a just decision in the case. Learned counsel appearing on behalf of the opposite party no.2, on the contrary, submitted that the facts of the case would - 5 - reveal for themselves that there is a veiled attempt on behalf of the defence to delay the disposal of the case. It is contended that in the facts and circumstances of the case, the present application filed by the petitioner is vexatious and is aimed at defeating the ends of justice. This Court having reflected over the rival submissions advanced on behalf of the parties and after going through the materials on record, finds force in the contention of the learned counsel appearing on behalf of opposite party no.2. The facts which have been set out hereinabove give an impression to this Court as well that the petitioner did not want disposal of the case and is, in fact, adopting different ways and means to delay the disposal of the case which a court of law will not countenance. Any such attempt would definitely defeat the ends of justice which demand quick decision of the case. There is no merit in this application which is, accordingly, dismissed. hr ( Kishore K. Mandal )