JASIMULLAH AND OTHERS Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard the learned counsel for the applicants and the learned AGA for the respondent and perused the record.

(2.) The learned Additional Sessions Judge has very categorically observed in his order dated 24.7.2010 (Annexure No. 1) that the witnesses cited in the list, paper No. 311-B, has already been examined as defence witnesses and Mr.Girdhari Lal, the then District Magistrate was not cited in that list, therefore, the prayer of the applicants for summoning the then District Magistrate as a defence witness was liable to be discarded. The learned Additional Sessions Judge further observed that the case of co-accused Wali Ullah has been separated,which is pending as Special Trial No. 8 of 2007, therefore, there was no justification nor sufficient ground to summon the District Magistrate as a defence witness.

(3.) In the present case, the applicants were called upon to enter on their defences. Accordingly they furnished the list of the witnesses (Paper No. 311-B) but the learned trial court summoned only two of the witnesses shown in the list but this Court allowed the petition No. 23381/2009 filed under section 482 CrPC and permitted the applicants to examine all the witnesses mentioned in the list. I fail to understand as to why the name of Girdhari Lal the then District Magistrate was not mentioned in the list. The learned counsel for the applicants submitted that under section 311 CrPC the court has power to summon any person as a witness whose evidence is essential for just decision of the case, hence the statement of Girdhari Lal, the then District Magistrate is necessary for proving the plea of alibi. Therefore, rejection of the application on the ground that in the earlier list, paper 311-B, the name of the then District Magistrate was not mentioned and this Court had permitted summoning of those witnesses only, was not proper.