Criminal Misc. No.M-4915 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Criminal Misc. No.M-4915 of 2008 (O&M) Date of Decision:3.2.2009 Gurmeet Singh .....Petitioner Vs. State of Haryana .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. G.S. Sidhu, Advocate for the petitioner. Mr. Tarunveer Vashisth, Additional Advocate General, Haryana. Mr. K.S. Nalwa, Amicus Curiae. **** JUDGMENT HARBANS LAL, J. This petition has been moved by Gurmeet Singh under Section 482 of Cr.P.C for quashing the order dated 2.1.2008 (Annexure P.3) passed by the learned Sessions Judge, Sirsa in Sessions trial Case No.113-SC/2007 pending in his Court for 30.1.2008 pertaining to the FIR No.419 dated 11.5.2007 under Sections 328/342/376/506/120-B read with Section 34 of IPC registered at Police Station, City Sirsa whereby the learned trial Judge directed the petitioner - accused to deposit the expenses within a week in connection with his evidence. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Mr. G.S. Sidhu, Advocate appearing on behalf of the petitioner Criminal Misc. No.M-4915 of 2008 -2- urged with great eloquence that the petitioner is facing trial in the Court of learned Sessions Judge, Sirsa in the above-mentioned case and he has entered upon his defence. The petitioner moved an application Annexure P.2 for comparing his DNA semen with the human semen found on the clothes of the prosecutrix Sharda, i.e., salwar Ex.P.12 and jumper Ex.P.13 and also with the semen samples taken from her vagina, in which human semen has been detected and for summoning the required witnesses, but the same has been declined by the learned trial Court by order dated 2.1.2008 Annexure P.3.. He further puts that the accused cannot be asked to deposit such expenses in view of the provisions of law. To tide over these submissions, Mr. Tarunveer Vashisth, Additional Advocate General, Haryana maintained that the State cannot be given a direction to deposit the expenses of DNA Test at the behest of the petitioner and that being so, no holes can be picked in the impugned order. I have well considered the rival contentions. It is a statutory right of the accused to summon and examine the witnesses in his defence after closure of the prosecution evidence, when he has been called upon to enter upon his evidence. When he exercises such a right, the Court is obligated to allow it and summon such witness, he wants. Only impediment to this right is that the Court has to be satisfied with the genuineness and bonafide of the prayer for summoning of such witness. The Court has to see that it is not intended to delay or defeat the ends of justice or has been made for purpose of vexation or delay. This act of summoning the defence witness by the Court is one, which is intended to promote the ends of justice and fair trial, otherwise the very intent or Criminal Misc. No.M-4915 of 2008 -3- purpose of this right shall stand defeated. The Courts are concerned with dispensation of justice. The concept of fair trial and fair opportunity to accused may not get defeated or frustrated. To achieve the ends, whatever steps are necessary in this direction, the Court should not hesitate to pursue, otherwise the very concept of fair trial would stand frustrated. There is no provision in the Code of Criminal Procedure which prevents the Court from summoning the defence witnesses at the expense of the State. The words used in sub-section (3) of Section 243 of the Code of Criminal Procedure, are “may require” mean that the Court has discretion and power to exonerate the accused from paying the reasonable expenses to be incurred by the witness in attending the Court for the purpose of trial. Section 233 of the Code of Criminal Procedure reads as under:- 233. Enetering upon defence. -- (1) Where the accused is not acquitted under Section 232 he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof. (2) If the accused puts in any written statement, the Judge shall file it with the record. (3) 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. Criminal Misc. No.M-4915 of 2008 -4- The learned trial Court has not mentioned in the impugned order that the accused- petitioner has moved for DNA Test for the purpose of vexation or delay or for defeating the ends of justice. To my mind, this test would rather secure the ends of justice. This test by no stretch of speculation could be deemed to be for delaying the proceedings before the trial Court. Since no such condition has been engrafted in the provisions of the Code of Criminal Procedure, the trial Court cannot ask or compel the accused or require that any expenses incurred by witness in attending for purpose of trial be paid or deposited by the accused. As such, I hold that in any trial before a Court of Session, the Court cannot direct or require the accused to deposit or pay the expenses of the witnesses sought to be examined by the accused in his defence. The only condition on which any such prayer of accused can be refused is that the same has been made on the ground or for the purpose of vexation or delay or for defeating the ends of justice and these reasons for refusing has to be recorded. No other condition can be imposed by the Court of Session, nor is recognised by the Criminal Procedure Code. The expert whosoever is to carry out the DNA Test, at the instance of the accused, if required to be examined by the accused, would be a defence witness. As is borne out from the impugned order, the learned trial Court has directed the petitioner- accused to deposit the necessary expenses within a week. The trial Court could not have insisted or directed for deposit of such expenses. In view of the preceding discussion, the impugned order Annexure P.3 dated 2.1.2008 is set aside. The learned trial Court is directed to reconsider the prayer made by the petitioner- accused through the Criminal Misc. No.M-4915 of 2008 -5- application Annexure P.2 dated 23.11.2007 for summoning the witnesses mentioned therein in defence and dispose of the same in accordance with law. Disposed of accordingly. February 03, 2009 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No