# Sanket Singh v. State of U.P. & Anr

- **Citation:** (2024) 11 ILRA 118
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-07
- **Case number:** Application U/S 482 No. 4826 of 2024
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanket-singh-v-state-of-u-p-anr-54652
- **Pages:** 13

## Headnote

Law-The
Code
of
Criminal
Procedure,1973 - Section 233- The scope
and object of Section 233 is to advance the
cause of substantial justice by providing the
accused an opportunity for compelling the
11 All. Sanket Singh Vs. State of U.P. & Anr.
119
production or attendance of any document or
witness which is normally required to be
allowed and can be rejected for reasons to be
recorded only on the three grounds which are
vexation or delay or defeating the ends of
justice indicated under sub-section (3) of
Section 233 Cr.P.C--- Impugned order is
quashed--- Trial court shall ensure that
process is issued for attendance of witnesses
five and six indicated in the application
no.91Kha as also production required in terms
of application no. 92Kha/1.

Petition partly allowed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,674 of 43,135. This is a partial read: ask again with offset=39674 for what follows._

118 INDIAN LAW REPORTS ALLAHABAD SERIES

f) a court examining a complaint
based on violation of rules of natural justice
is entitled to see whether the aggrieved
party had indeed suffered any prejudice on
account of such violation. To that extent
there has been a shift from the earlier
thought that even a technical infringement
of the rules is sufficient to vitiate the
action.

19. Coming to the present writ petition
in hand, three factors may be highlighted
by this Court. Firstly, the impugned order
merely copies the reply provided by the
petitioner which leads to a conclusion that
there was non application of mind by the
respondent authority. Secondly, in the reply
to the show cause notice, certain documents
and reports were sought for by the assessee,
which had been relied upon by the
authorities. However, without providing the
same to the assessee, the authorities
proceeded to impose the tax liability and
penalty. Thirdly, the explanation provided
by the petitioner with regard to the use of
the raw materials in the process of the
manufacture by the petitioner supported
with opinions of the experts were simply
brushed aside by the respondent authority,
who did not even examine whether the said
raw
materials
had
been
used
in
manufacture of the final products which
were fabrics. Without having done so and
without granting an opportunity of fair
hearing to the petitioner, the liability that
has been imposed upon the petitioner
appears to be patently illegal and without
any authority in law.

20.
As
discussed
above,
non
production of certain documents to the
petitioner that were relied upon by the
authorities, coupled with the manner in
which no proper opportunity of hearing
was granted to the petitioner leads us to the
conclusion that severe prejudice has been
caused
to
the
petitioner.
Ergo,
the
impugned order cannot be sustained and is
liable to be quashed and set aside.

21. Accordingly, the impugned order
dated September 12, 2024 is quashed and
set aside with a direction upon the
respondent authorities to examine the
fabrics, provide a copy of the report to the
petitioner, grant an opportunity of hearing
to the petitioner and thereafter pass a
reasoned order in the same. We make it
clear that with regard to E-way bills on
which liability has also been fastened, an
opportunity of hearing shall be granted to
the petitioner.

22. With the above directions, the writ
petition is allowed.
----------
(2024) 11 ILRA 118
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.11.2024

BEFORE

THE HON'BLE MANISH MATHUR, J.

Application U/S 482 No. 4826 of 2024

Sanket Singh ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Abhilasha Singh, Ashutosh Yadav, Shyam
Lal

Counsel for the Opposite Parties:
G.A., Imran Ullah, Pankaj Kumar Mishra

Criminal
Law-The
Code
of
Criminal
Procedure,1973 - Section 233- The scope
and object of Section 233 is to advance the
cause of substantial justice by providing the
accused an opportunity for compelling the
11 All. Sanket Singh Vs. State of U.P. & Anr.
119
production or attendance of any document or
witness which is normally required to be
allowed and can be rejected for reasons to be
recorded only on the three grounds which are
vexation or delay or defeating the ends of
justice indicated under sub-section (3) of
Section 233 Cr.P.C--- Impugned order is
quashed--- Trial court shall ensure that
process is issued for attendance of witnesses
five and six indicated in the application
no.91Kha as also production required in terms
of application no. 92Kha/1.

Petition partly allowed. (E-15)

List of Cases cited:

1.
Vivek
Narayan
Sharma
&
ors.(Demonetisation Case-5 J.) Vs U.O.I. &
ors. (2023) 3 SCC 1

2. J. Jayalalithaa & ors.Vs St. of Karn. &
ors.reported in 2014 (2) SCC 401

3. Kalyani Baskar Vs M.S. Sampoornam, (2007)2
SCC 258

4. Munna Pandey Vs St. of Bihar passed in
Criminal Appeal Nos.1271-1272 of 2018

5. Dr. Rajesh Talwar & anr.Vs C.B.I. & anr.2014
(1)SCC 628.

6. Enforcement Directorate Vs Kapil Wadhawan,
(2024) 7 SCC 147

7. Anupam Singh Vs St. of U.P. Through
Principal Secretary Home & anr. reported in
2024 SCC Online All 156

8. Angadh S/o. Rohidas Kadam, Rohidas S/o Vs
The St. of Maharashtra & Madhukar reported in
2007(109)BOM. L.R.34,

9. Manoj Kumar Swami Vs St. of U.P. reported
in 2006 CRI.L.J. 1781.

10. Anees Vs St. of Uttarakhand reported in
2018 STPL 6476 Uttarakhand

11. Natasha Singh Vs CBI (St.) reported in
(2013) 5 SCC 741

12. Amarjeet @ Kaluwa Vs St. of U.P. &
anr.passed in Application U/S 482 No.8463 of
2020,

13. Dharmendra Kumar @ Dhamma Vs St. of
M.P. reported in (2024) 8 SCC 60

14. Krishan Kumar Pandey @ Kukkoo Pandey Vs
The St. of U.P. passed in Criminal Misc. Case
No.2109 of 2008

(Delivered by Hon'ble Manish Mathur, J.)

1. Heard Mr. Ashutosh Yadav, learned
counsel
for
accused-applicant,
Mr.
Satyendra
Tiwari,
learned
Additional
Government
Advocate
appearing
for
opposite party no.1 State and Mr. Imran
Ullah, learned counsel for opposite party
no.2.

2. Application under Section 482
Cr.P.C. has been filed for modification of
order dated 17.01.2024 passed in Sessions
Trial No.401 of 2017, State versus Sanket
& Ors., arising out of Case Crime No.1263
of 2016, under Sections 147, 148, 149, 307,
302, 506, 120B IPC and Section 7 Criminal
Law Amendment Act, Police Station
Quarsi, District Aligarh by directing
summoning of witnesses no.1, 2 and 8 at
the expense of State Government and not at
the expense of accused-applicant. Further
prayer for quashing part of the order dated
17.01.2024 passed in the aforesaid case so
far as it rejects summoning of witnesses 3,
4, 5, 6 & 7 has been sought. Prayer has also
been made for quashing of the said order
dated 17.01.2024 whereby application
no.92 Kha for summoning of record of
affidavit verification photo from the record
keeper of Photo Identification Centre of
this Court has been made.

3. Learned counsel for accusedapplicant submits that earlier the accused-
120 INDIAN LAW REPORTS ALLAHABAD SERIES
applicant had filed an application dated
03.07.2017 seeking verification of the
Photo Identification Centre of this Court as
well as records of the Shri Ram Hotel
Allahabad. The said application was
rejected
by
means
of
order
dated
15.07.2017 which was challenged before
this Court in application under Section 482
Cr.P.C. bearing No.26575 of 2017 in which
initially interim order dated 05.09.2017 was
passed but the application thereafter was
dismissed vide order dated 07.05.2019
leaving it open to the applicant to lead such
evidence at the appropriate stage with the
observation that such a plea is not required
to be considered since at that time the stage
was only for framing of charge.

4. It is submitted that subsequently the
applicant preferred another application
dated 29.05.2019 before the trial court
seeking
a
direction
to
the
Photo
Identification
Centre
of
this
Court,
specifically the record in charge to keep the
said record in safe custody till disposal of
the case. The said application was allowed
by means of order dated 19.10.2019. It is
submitted that however despite allowing
the said application, no information was
sent by the office of trial court to the Photo
Identification Centre of this Court leading
to filing of another application by the
applicant
through
jailor.
The
said
application was rejected by means of order
dated 11.08.2021 which was challenged by
the applicant in an application under
Section 482 Cr.P.C. bearing No.23012 of
2021, which is said to be still pending
consideration.

5. It has also been submitted that the
Photo Verification Centre of the High
Court functions under the Bar Association
which is a Private Society registered under
the Societies Registration Act and therefore
the documents issued by such a Centre
would not come within purview of public
document as envisaged under Section 74 of
the Evidence Act due to which its
corroboration is required.

6. It is submitted that during pendency
of the earlier application under Section 482
Cr.P.C., the applicant filed the present
applications
dated
20.12.2023
with
Application
No.92Kha/1 pertaining
to
summoning of the In charge of the Photo
Identification Centre alongwith records of
19.12.2016 and the Second Application
Bearing No.91Kha/1 indicating a list of
eight different witnesses sought to be
summoned under Section 233 Cr.P.C.

7. It is these two applications which
have been rejected by means of impugned
order dated 17.01.2024.

8. Learned counsel submits that the
incident as per first information report is
said to have taken place on 19.12.2016 in
which first information report was lodged
and charge-sheet was also submitted on
19.03.2017 whereupon cognizance was
taken on 30.03.2017 with charges being
framed on 25.09.2019. It is submitted that
due to interim protection granted earlier,
the proceedings were hived off into
Sessions Trial No.401 of 2017 and 401A of
2017
with
Trial
No.401A
of
2017
pertaining to the applicant. It is further
submitted that the prosecution witnesses
have already been examined with evidence
under Section 313 Cr.P.C. being recorded
on 25.09.2023.

9. It is submitted that under Section
233
Cr.P.C.,
the
applicants
have
a
fundamental right to seek production of
relevant documents and witnesses to prove
their case of alibi that as on the date of
11 All. Sanket Singh Vs. State of U.P. & Anr.
121
incident on 19.12.2016, the applicants had
attended Court proceedings before this
Court which was sought to be proved by
means of relevant documents such as Photo
Identification
issued
by
the
Photo
Identification Centre of this Court. It is
submitted that once the earlier application
for keeping such records in safe custody
was allowed, with only information not
being remitted to the Centre, it was
incumbent upon the trial court to have
adhered to the initial directions and not to
have rejected the subsequent applications
for production of the Incharge and the said
records.

10. It is submitted that similarly the
eight defence witnesses sought to be
produced by the applicant under Section
233 Cr.P.C. were for the purposes of
proving and substantiating not only their
alibi but the fallacies in the prosecution
story. It is submitted that such a right is
available to the accused under Section 233
Cr.P.C. read with Article 21 of the
Constitution of India and therefore would
be a fundamental right available to an
accused-applicant particularly keeping in
view the provisions of Section 233 Cr.P.C.
which are couched in mandatory terms.

11. It is also submitted that the
application under Section 233 Cr.P.C.
could have been rejected only on account
of three grounds indicated in the section viz
vexation or delay or for defeating the ends
of justice but a perusal of the impugned
order would indicate that none of the three
grounds have been taken by the trial court
for rejecting the said application.

12. It is further submitted that even
while allowing the summoning of witnesses
no.1, 2 & 8 sought under Section 233
Cr.P.C., expenses thereof have been
fastened
upon
the
accused-applicant
whereas for purposes of ensuring a fair
trial, expenses were required to be fastened
upon the State.

13. Learned counsel has placed
reliance on judgments:

(i) Angadh S/o. Rohidas Kadam,
Rohidas
S/o
versus
The
State
of
Maharashtra & Madhukar reported in
2007(109)BOM. L.R.34,

(ii) Smt. Sreeja versus Public
Prosecutor passed in CRL. MC No.4909 of
2024, Crime No.248 /2022 of Angamali
Police Station, Ernakulam,

(iii)
Anees
versus
State
of
Uttarakhand reported in 2018 STPL 6476
Uttarakhand,

(iv) Natasha Singh versus CBI
(State) reported in (2013) 5 SCC 741,

(v) Amarjeet @ Kaluwa versus
State of U.P. & Anr. passed in Application
U/S 482 No.8463 of 2020,

(vi) Krishna Kumar Pandey @
Kukkoo Pandey versus The State of Uttar
Pradesh passed in Criminal Misc. Case
No.2109 of 2008,

(vii) Mahe Aalam versus State of
U.P. reported in 2005 STPL 12541
Allahabad,

(viii)
Manoj
Kumar
Swami
versus State of Uttar Pradesh reported in
2006 CRI.L.J. 1781.

14. Learned Additional Government
Advocate appearing on behalf of State as
well as learned counsel for opposite party
no.2 have refuted submissions advanced by
learned counsel for applicant with the
submission that the provisions of Section
233 Cr.P.C. cannot be construed as a
specific
mandate
binding
the
court
concerned to the effect that any application
filed by an accused under the said provision
122 INDIAN LAW REPORTS ALLAHABAD SERIES
is mandatorily required to be allowed. It is
submitted that the stand of prosecution and
the defence does not stand on equal footing
and therefore exception under Section 233
Cr.P.C. has been carved circumscribing the
powers of trial court under the said
provision. It is submitted that in view of the
provisions of Section 233 Cr.P.C., it would
be incumbent upon an accused to indicate
valid reasons for production of any
additional document or witness under
Section 233 Cr.P.C.

15. On merits as well, learned counsel
for opposite parties have submitted that the
production of witnesses 3 & 4 who are
Police Officers has been sought by the
opposite parties only to corroborate the
information supplied to accused under the
Right to Information Act, 2005. It is
submitted that such documents having been
supplied under statutory enactment come
within the realm of public documents under
Section 74 of the Evidence Act with
presumption of genuineness subject to
rebuttal under Section 79 of the Evidence
Act and therefore there is no occasion for
the accused to seek summoning of such
witnesses.

16. It is also submitted that the
applicant had earlier as well filed
applications on 30.10.2023, 03.11.2023
and 01.12.2023 under Section 233
Cr.P.C.
whereunder
also
applicants
could have very well sought production
of such documents and witnesses as has
been done by means of the present
applications. It is submitted that since
such an opportunity has not been availed
of by the accused thrice, it clearly
indicates that the present applications
have been filed for a vexatious purpose
and only to delay the trial and therefore
the order rejecting production of such
documents and summoning of witnesses
has been correctly passed.

17. Learned counsel for opposite
party no.2 on the basis of instructions
has made specific statement that the
genuineness of the Photo Identity passes
issued to the accused-applicant which
was brought on record of the trial court
are not being disputed and are in fact
admitted. However the said admission
does not extend to the contents of the
said document.

18. With regard to the aspect of
expenses fastened upon the applicants,
learned counsel for opposite parties
submit that such a power is to be
exercised under Section 233 Cr.P.C. read
with Section 312 Cr.P.C. and since it is
the accused-applicant who is seeking
such witnesses, the trial court has rightly
fastened the aspect of expenses upon
the accused-applicant.

19.
Upon
consideration
of
submissions
advanced
by
learned
counsel for parties and perusal of
material on record, it is evident that the
aspect of validity of impugned orders are
required to be adjudged in terms of
provisions of Section 233 Cr.P.C. which
are as follows:

".233. Entering 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
11 All. Sanket Singh Vs. State of U.P. & Anr.
123
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."

20. The wordings of Section 233 (3)
Cr.P.C.
clearly
indicates
a
positive
obligation upon the Court for compelling
attendance of any witness or production of
any document or thing in case the accused,
applies for issue of process for compelling
such attendance or production. However
such a positive direction is circumscribed
by three grounds viz vexation or delay or
defeating the ends of justice on which the
trial court would be entitled to reject such a
plea, for reasons to be recorded.

21.
With
regard
to
statutory
interpretation, Hon'ble the Supreme Court
in the case of Vivek Narayan Sharma and
Ors. (Demonetisation Case-5 J.) v. Union
of India and Ors., (2023) 3 SCC 1 has
specifically held that in case of statutory
interpretation, a purposive interpretation is
required to be given keeping in view the
wordings of a particular enactment to
further the purpose of such a provision
having been incorporated in the Act. The
relevant paragraph is as follows:

"148. It is thus clear that it is a
settled principle that the modern approach of
interpretation is a pragmatic one, and not
pedantic. An interpretation which advances
the purpose of the Act and which ensures its
smooth and harmonious working must be
chosen and the other which leads to
absurdity, or confusion, or friction, or
contradiction and conflict between its various
provisions, or undermines, or tends to defeat
or destroy the basic scheme and purpose of
the enactment must be eschewed. The
primary and foremost task of the Court in
interpreting a statute is to gather the
intention of the legislature, actual or imputed.
Having ascertained the intention, it is the
duty of the Court to strive to so interpret the
statute as to promote or advance the object
and purpose of the enactment. For this
purpose, where necessary, the Court may
even depart from the rule that plain words
should be interpreted according to their plain
meaning. There need be no meek and mute
submission to the plainness of the language.
To avoid patent injustice, anomaly or
absurdity or to avoid invalidation of a law,
the court would be justified in departing from
the so-called golden rule of construction so
as to give effect to the object and purpose of
the enactment. Ascertainment of legislative
intent is the basic rule of statutory
construction."

22. Upon applicability of aforesaid
judgment in the facts and circumstances of
the case, it is evident from the wordings of
Section 233 (3) Cr.P.C. that the provision is
clearly meant for beneficial purpose for the
attendance of any witnesses or production of
any document sought by the accusedapplicant. Such a positive enactment is
keeping in view the purpose of a fair trial as
required under Article 21 of the Constitution
of India.

23. The concept of fair trial has
already been explained and enunciated
upon by Supreme Court in the case of J.
Jayalalithaa and Ors. versus State of
Karnataka and Ors. reported in 2014 (2)
SCC 401 in the following manner:

"28. Fair trial is the main object
of criminal procedure and such fairness
should not be hampered or threatened in
any manner. Fair trial entails the interests
124 INDIAN LAW REPORTS ALLAHABAD SERIES
of the accused, the victim and of the
society. Thus, fair trial must be accorded to
every accused in the spirit of the right to
life and personal liberty and the accused
must get a free and fair, just and
reasonable trial on the charge imputed in a
criminal case. Any breach or violation of
public rights and duties adversely affects
the community as a whole and it becomes
harmful to the society in general. In all
circumstances, the courts have a duty to
maintain
public
confidence
in
the
administration of justice and such duty is to
vindicate and uphold the "majesty of the
law" and the courts cannot turn a blind eye
to vexatious or oppressive conduct that
occurs in relation to criminal proceedings.

29. Denial of a fair trial is as
much injustice to the accused as is to the
victim and the society. It necessarily
requires a trial before an impartial Judge,
a fair prosecutor and an atmosphere of
judicial calm. Since the object of the trial is
to mete out justice and to convict the guilty
and protect the innocent, the trial should be
a search for the truth and not a bout over
technicalities and must be conducted under
such rules as will protect the innocent and
punish the guilty. Justice should not only be
done but should be seem to have been done.
Therefore, free and fair trial is a sine qua
non of Article 21 of the Constitution. Right
to get a fair trial is not only a basic
fundamental right but a human right also.
Therefore, any hindrance in a fair trial
could be violative of Article 14 of the
Constitution. "No trial can be allowed to
prolong indefinitely due to the lethargy of
the prosecuting agency or the State
machinery and that is the raison d'tre in
prescribing the time frame" for conclusion
of the trial.

30. Article 12 of the Universal
Declaration of Human Rights provides for
the right to a fair trial what is enshrined in
Article 21 of our Constitution. Therefore,
fair
trial
is
the
heart
of
criminal
jurisprudence and, in a way, an important
facet of a democratic polity and is
governed by the rule of law. Denial of fair
trial is crucifixion of human rights."

24. In Kalyani Baskar v. M.S.
Sampoornam,(2007)2
SCC
258,
the
Supreme Court while elaborating the
meaning of fair trial observed as below:?

"Fair trial" includes fair and
proper opportunities allowed by law to
prove her innocence. Adducing evidence in
support of the defence is a valuable right.
Denial of that right means denial of fair
trial. It is essential that rules of procedure
designed to ensure justice should be
scrupulously followed, and the courts
should be jealous in seeing that there is no
breach of them."

25. The said proposition has been
reiterated in the case of Munna Pandey
versus State of Bihar passed in Criminal
Appeal Nos.1271-1272 of 2018 & Dr.
Rajesh Talwar & Anr. versus C.B.I. &
Anr. 2014 (1)SCC 628.

26. The Supreme Court in the case of
Enforcement
Directorate
v.
Kapil
Wadhawan, (2024) 7 SCC 147 has clearly
enunciated the law that provisions of
Cr.P.C. are to be seen in the context of
advancement of justice particularly in case
of defence setup by the accused in order to
ensure a fair trial.

27. The concept of provisions of
Section 233 Cr.P.C. therefore assumes
significance, as per which an application
thereunder can be rejected only in case the
Court concerned, for reasons to be
recorded, indicates that it has been made
11 All. Sanket Singh Vs. State of U.P. & Anr.
125
for the purpose of vexation or delay or for
defeating the ends of justice. The specific
wordings of Section 233 Cr.P.C. therefore
do not envisage rejection of such an
application on any other ground. The gist
of the said provision particularly subsection (3) thereof clearly imposes an
obligation upon the Court to allow such an
application positively except only on the
grounds indicated hereinabove. It therefore
appears that provision of Section 233
Cr.P.C. are clearly in favour of allowing
such an application being preferred by the
accused.

28. The provision of Section 233
Cr.P.C. has also been considered by the
Coordinate Bench of this Court in the
case of Anupam Singh versus State of
U.P. Through Principal Secretary Home
and Anr. reported in 2024 SCC Online
All 156 reiterating the fact that an
application under Section 233 Cr.P.C.
cannot be refused on the grounds which
are not covered by three excluding
clauses in the following manner:

"8. In my view, if the application
is refused on the grounds which are not
covered by three excluding clauses, as
provided in latter part of section 233(3)
Cr.P.C. such approach shall be alien as far
as scope of section 233 Cr.P.C. is
concerned. This fact is undisputed that the
witnesses who are sought to be summoned
by the defence under section 233(3)
Cr.P.C. were not examined as prosecution
witnesses, at any stage. In fact, though they
were witnesses of inquest but never
produced by the prosecution.

29. The said aspect has again been
reiterated by another Coordinate Bench of
this Court in the case of Manoj Kumar
Swami (supra).

30. The said concept has also been
considered by High Court of Bombay in the
case of Angad (supra) as follows:

"13. Then the question comes as
to what is the scope of Section 233 of
Cr.P.C. A bare perusal of Sub-section 3 of
Section 233 would reveal that when
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. It can thus be
clearly seen that when an accused
exercises his right under Sub-section 3 of
Section 233 for compelling the attendance
of any witness or production of any
document, the learned Magistrate can
refuse the said request only on three
grounds: (i) vexation, (ii) delay, and (iii)
defeating the ends of justice. Moreover, the
Magistrate is required to record his
reasons for refusing the request. A bare
perusal of the said Section would reveal
that except those three grounds, the request
cannot be turned down on any other
ground."

31. Similarly the High Court of Kerla
at Arnakulam has also adverted to the
aforesaid provision and has held that when
the accused submits a list of witnesses, is
not open for the Court to pick and choose
the witnesses and is bestowed with the
power to refuse to summon such a witness
only on the exclusion clauses indicated in
Section 233(3) Cr.P.C. It has also been held
that it is not proper for a trial court to
conclude during the middle of trial that
some witnesses would not advance the case
of accused since such a conclusion can be
126 INDIAN LAW REPORTS ALLAHABAD SERIES
drawn only once the said witnesses have
been examined.

32. The High Court of Uttarakhand in
the case of Anees (supra) had also held that
non-compliance of mandatory provision
prescribed by Section 233 Cr.P.C. would be
a serious lapse causing prejudice to the
accused and in such circumstances, the
conviction and sentence may not stand the
test of law.

33. The Supreme Court in the case of
Natasha
Singh
(supra)
although
considering provisions of Section 311
Cr.P.C has also adverted to the concept of
fair trial as being the main object of
criminal procedure while casting a duty on
the court to ensure that such fairness is not
hampered or threatened in any manner
since it entailed interest of accused and
therefore a grant of fair and proper
opportunity to the accused is required to be
ensured as his constitutional and human
right. It has also been held that trial court
cannot prejudge evidence of the witness
sought to be examined by an accused since
it would cause grave and material prejudice
to the accused with regard to defence and
would therefore the tantamount to flagrant
violation of principles of law. The relevant
portions of judgment are as follows:

"15. The scope and object of the
provision is to enable the court to
determine the truth and to render a just
decision after discovering all relevant facts
and obtaining proper proof of such facts, to
arrive at a just decision of the case. Power
must be exercised judiciously and not
capriciously
or
arbitrarily,
as
any
improper or capricious exercise of such
power may lead to undesirable results. An
application under Section 311 CrPC must
not be allowed only to fill up a lacuna in
the case of the prosecution, or of the
defence, or to the disadvantage of the
accused, or tocause serious prejudice to
the defence of the accused, or to give
anunfair advantage to the opposite party.
Further, the additional evidence must not
be received as a disguise for retrial, or to
change the nature of the case against either
of the parties. Such a power must be
exercised, provided that the evidence that is
likely to be tendered by a witness, is
germane
to
the
issue
involved.
An
opportunity of rebuttal however, must be
given to the other party. The power
conferred under Section 311 CrPC must
therefore, be invoked by the court only in
order to meet the ends of justice, for strong
and valid reasons, and the same must be
exercised
with
great
caution
and
circumspection. The very use of words such
as 'any court', 'at any stage', or 'or any
enquiry, trial or other proceedings', 'any
person' and 'any such person' clearly spells
out that the provisions of this section have
been expressed in the widest possible
terms, and do not limit the discretion of the
court in any way. There is thus no escape if
the fresh evidence to be obtained is
essential to the just decision of the case.
The determinative factor should therefore
be, whether the summoning/recalling of the
said witness is in fact, essential to the just
decision of the case.

20. Undoubtedly, an application
filed under Section 311 CrPC must be
allowed if fresh evidence is being produced
to facilitate a just decision, however, in the
instant case, the learned trial court
prejudged the evidence of the witness
sought to be examined by the appellant,
and thereby caused grave and material
prejudice to the appellant as regards her
defence, which tantamounts to a flagrant
violation of the principles of law governing
the production of such evidence in keeping
11 All. Sanket Singh Vs. State of U.P. & Anr.
127
with the provisions of Section 311 CrPC.
By doing so, the trial court reached the
conclusion that the production of such
evidence by the defence was not essential to
facilitate a just decision of the case. Such
an assumption is wholly misconceived, and
is not tenable in law as the accused has
every right to adduce evidence in rebuttal
of the evidence brought on record by the
prosecution. The court must examine
whether
such
additional
evidence
is
necessary to facilitate a just and proper
decision of the case. The examination of the
handwriting expert may therefore be
necessary to rebut the evidence of Rabi Lal
Thapa (PW 40), and a request made for his
examination ought not to have been
rejected on the sole ground that the opinion
of the handwriting expert would not be
conclusive. In such a situation, the only
issue that ought to have been considered by
the courts below, is whether the evidence
proposed to be adduced was relevant or
not. Identical is the position regarding the
panchnama witness, and the court is
justified in weighing evidence, only and
only once the same has been laid before it
and brought on record. Mr B.B. Sharma,
thus, may be in a position to depose with
respect to whether the documents alleged
to have been found, to have been seized,
were actually recovered or not, and
therefore, from the point of view of the
appellant, his examination might prove to
be essential and imperative for facilitating
a just decision of the case."

34. Although the said judgment
pertains to Section 311 Cr.P.C. but in the
considered opinion of this Court, the
aforesaid judgments can be read for the
purpose of determining power of trial court
with
regard
to
summoning
or
reexamination of witnesses under Section
233 Cr.P.C. as well, since both provisions
pertain
to
summoning
of
material
witnesses.

35. Another Coordinate Bench of this
Court while considering provisions of
Section 311 Cr.P.C. in the case of Amarjeet
@ Kaluwa (supra) has also held that the
accused has a right to summon any
evidence/witness which may be relevant for
proper
appreciation
of
prosecution
evidence and to substantiate his defence.

36.
Upon
encapsulation
of
the
aforesaid
judgments,
it
is
clearly
discernible that the scope and object of
Section 233 Cr.P.C. is to advance the cause
of substantial justice by providing the
accused an opportunity for compelling the
production or attendance of any document
or witness which is normally required to be
allowed and can be rejected for reasons to
be recorded only on the three grounds
indicated under sub-section (3) of Section
233 Cr.P.C.

37. In the background of aforesaid
enunciation
of
law,
the
application
preferred under the said provision by the
applicant is required to be seen.

38.
The
application
no.91Kha/1
indicates a list of eight different witnesses
sought by the accused to be summoned.
Out of the said eight persons, trial court has
granted summoning with regard to three of
the witnesses at serial no.1, 2 and 8 while
rejecting the rest.

39. It has been submitted that persons
required to be summoned as indicated in
the application at serial no.3 and 4 are the
S.P. City and the C.O. City who require to
be examined by the accused in order to
corroborate the information provided to
accused-applicant under the Right to
128 INDIAN LAW REPORTS ALLAHABAD SERIES
Information
Act.
With
regard
to
summoning of such witnesses, it is not the
case of the applicant that the said persons
are eye witnesses to the incident. The
information provided to the applicant under
Right to Information Act may come within
definition of a public document under
Section 74 of the Evidence Act and may
therefore attract the provision of Section 79
of the Evidence Act.

40.
In
such
circumstances,
the
application pertaining to said persons are
found by this Court to be vexatious having
been made only for the purposes of
delaying the trial. With regard to aforesaid
witnesses, the finding recorded by trial
court is therefore upheld.

41. So far as witnesses 5 & 6 of the
application being Yogesh Mahajan &
Monu Mahajan is concerned production of
such witnesses has been refused by trial
court on the ground that they are not
relevant witnesses for the purpose of
establishing proceedings recorded by the
CC TV Camera.

42. In the considered opinion of this
Court, rejection of summoning of said two
witnesses clearly goes beyond the ground
indicated in Section 233(3) Cr.P.C. since at
this stage, trial Court is not required to
consider whether their defence would be
material or not and such a satisfaction can
be garnered only once the said witnesses
have deposed.

43. So far as production of witness No.7
being the Branch Manager/ CPIO of the State
Bank of India/Branch Manager D.S. College
is concerned, this Court also finds that
production of such witness may be only to fill
in lacuna of the defence instead of
corroborating any particular evidence or for
substantiation of the defence case. It is settled
law that by means of an application under
Section 233 Cr.P.C., lacuna in the defence
case cannot be sought to be fulfilled or for
creation of evidence. In view thereof, the
production for said witness no.7 also is found
to be vexatious and would lead to delay in
conclusion of trial. The rejection by trial
court recorded for summoning of said witness
is therefore upheld.

44. So far as the application no.92kha/1
pertaining to summoning of the In-charge of
Photo Identification Centre along with record
is concerned, it is evident from material on
record that such verification is being sought
by the applicant ever since 03.07.2017 and
subsequent to initial rejection thereof, the
same was thereafter allowed by means of
order dated 19.10.2019. It therefore does not
stand to reason as to why the earlier order
dated 19.10.2019 passed by the trial court
itself should not have been followed through
by the trial court. It is also relevant that the
said records are kept under custody of the Bar
Association concerned and therefore may not
come within purview of Sections 74 and 79
of the Evidence Act due to which their
corroboration may be required. It is also
relevant that learned counsel for opposite
party no.2 has clearly on the basis of
instruction admitted the genuineness of said
documents but has however expressed
reservation with regard to contents of said
documents. Therefore the admission with
regard to the said documents is not
unequivocal.

45. It is also evident that production of
such documents is being sought by the
accused in order to substantiate and
corroborate his plea of alibi.

46. With regard to the plea of alibi,
Hon'ble the Supreme Court in the case of
11 All. Sanket Singh Vs. State of U.P. & Anr.
129
Dharmendra
Kumar
Alias
Dhamma
versus State of Madhya Pradesh reported
in (2024) 8 SCC 60 has enunciated as
follows:

"50.There is no gainsaying that
whosoever pleads alibi in contrast and
derogation of the eyewitness version, is
under cumbrous onus to prove absence
from the scene and time of crime. The
appellant not only failed to raise this
defence but also did not adduce any
evidence in support thereof. Taking into
consideration the cumulative effect of all
these factors, we have no reason to doubt
that the appellant was not only present at
the scene of crime, but he actively
participated also in the occurrence and
gave one of the fatal blows to Tillu
(deceased)."

47. It is thus evident that since the
applicant is pleading alibi, he should be
granted ample opportunity to discharge the
onerous burden cast upon him particularly in
view of the fact that production of such
document has been sought by him ever since
2017 and was also allowed earlier.

48. The aforesaid application has also
been rejected, in view of earlier order dated
11.08.2021 on the ground that the accused
cannot use provisions of Section 233 Cr.P.C.
to garner evidence as also placing reliance on
order dated 07.05.2019 passed by this Court
an application under section 482 Cr.P.C.
bearing no.26577 of 2017 which however only
indicates that the applicant was granted liberty
to lead such evidence at the appropriate stage.
Application has also been rejected on the
ground that the applicant himself should have
made an effort to obtain such records.

49. The reasoning indicated by trial
court while rejecting the said application
No.92Kha/1 is patently erroneous since it
also does not conform to rejection on any
of three grounds indicated in Section
233(3) Cr.P.C. for such rejection. It is
evident from record that the original pass
issued by Photo Identification Centre of
this Court has already been brought on
record of the trial court which therefore
may be required to be corroborated by
production of original records from the
Centre which as indicated herein-above
may not come within definition of Section
74 of the Evidence Act.

50. In view of aforesaid facts and
discussion, it is evident that the trial court
has erred in rejecting the application
No.92Kha/1 as well as a part of application
No.91kha/1.

51. So far as the aspect of expenses is
concerned, burden for which has been cast
upon applicant himself, coordinate benches
of this Court in the case of Krishan Kumar
Pandey alias Kukkoo Pandey versus The
State of Uttar Pradesh passed in Criminal
Misc. Case No.2109 of 2008 have clearly
enunciated the law after considering
Section 312 Cr.P.C. is as follows:

"Thus, from a study of the
aforesaid
provisions
relating
to
the
summoning of defence witness it is clear
that as far as the Sessions Trial is
concerned the provisions of the Code
stands on the same footing in respect of
summoning the prosecution witness viz-aviz defence witness and there is no
difference. In other words like prosecution
witnesses the defence witness in the
sessions case are also to be summoned at
the expenses of the State.