RAJESWARAN Vs. STATE OF KERALA

JUDGEMENT

(1.) This is an application filed by the accused in S.C. No. 1034/09 on the files of the First Additional Assistant Sessions Court, Thiruvananthapuram, challenging the order passed in Annexure-C application filed by the petitioner under S. 233 of Code of Criminal Procedure under S. 482 of Code of Criminal Procedure. It is alleged in the petition that petitioner is the 4th accused in S.C. No. 1034/09 on the file of the First Additional Assistant Sessions Court, Thiruvananthapuram, and facing trial for alleged commission of offences under Ss. 120B, 307 and S. 34 of Indian Penal Code. The allegation was that the petitioner along with other 3 accused persons conspired and in pursuant with the said conspiracy, first accused engaged accused Nos. 2 and 3 to pour acid on the face of one Mr. Battawe, the then security manager of Air India on 4.4.2008 and pursuant to this conspiracy, they have poured acid on the injured and attempted to commit murder the said injured victim and thereby they have committed the above said offence. The prosecution witnesses were examined and the prosecution evidence was closed. Thereafter, the accused were questioned under S. 313 of Code of Criminal Procedure and thereafter it was posted for defence evidence. At that time, the petitioner filed Annexure-C defence witness list dated 25.11.2013 to issue process to compel the appearance of the witnesses mentioned in the witness list who were shown as CW7 & CW8 in the final report filed by the investigating officer. The application was filed with a prayer to summon the witnesses at the expense of the State. The Assistant Sessions Judge allowed the request to examine the defence witnesses instead of summoning the witnesses at the State expenses, directed the petitioner to produce the witnesses on 27.11.2013. The order is being challenged before this court.

(2.) When the application came up for hearing on the question of vacating the stay, the learned Public Prosecutor submitted that she has no objection in the court permitting the petitioners to take out summons to the witnesses through process at the expense of the State, so that the trial of the case can be completed. Counsel for the petitioner also submitted that it is difficult to produce the witnesses as directed by the petitioner.

(3.) Since the witnesses sought to be summoned are official witnesses working in the Airport, it is not possible for the petitioner who is the accused in the case to produce them as directed by the Assistant Sessions Judge. Further, it appears that they are not working in Trivandrum at present but in Chennai and Ernakulam respectively. Since they are official witnesses without summons issued from the court, their presence could not be procured. So the direction issued by the Assistant Sessions Judge to produce the witnesses by the petitioner under the circumstances is unsustainable. Further, S. 233(3) of Code of Criminal Procedure says that if the accused applies for issue of any process for compelling the attendance of any witness or 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. But in this case, the learned Assistant Sessions Judge had decided to allow the application and examine the witnesses cited by the defence. So, the learned Assistant Sessions Judge ought to have issued summons to the witnesses instead of directing the petitioner to produce them for examination.