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Manoj Kumar v. State Of U.P. - APPLICATION U/s 482 No. 5658 of 2006  RD-AH 10558 (30 May 2006)
Court No. 2
Criminal Misc Application No. 5658 of 2006.
Manoj Kumar.............Vs.............State of U.P.
Hon'ble Ravindra Singh, J.
Heard learned counsel for the applicant, learned A.G.A. and Sri Mohd. Khalil learned counsel for the complainant.
This application has been filed by the applicant Manoj Kumar with a prayer to quash the order dated 15.5.2006 passed by the learned Additional Sessions Judge, Court No. 2, Allahabad in S.T. No. 560 of 2005 whereby the application dated 19.1.2006 filed by co-accused Shekhar Srivastava, praying therein that some of the most important witnesses from the side of the defence may be summoned, has been rejected.
It is contended by the learned counsel for the applicant that in the present case the prosecution has closed its evidence. The statement of the accused under Section 313 Cr. P. C. has been recorded. An application dated 19.1.2006 along with the list of the defence witnesses has been filed with a prayer to summon the witnesses in defence. That application was disposed of by the trial court on 23.1.2006 in which only the witnesses mentioned at serial nos. 7, 8 and 11 were summoned in defence and remaining witnesses were not summoned, but again an application dated 4.5.2006 has been moved by the applicant with a prayer that the remaining witnesses as mentioned at Serial No. 1 to 6, 9 and 10 may be summoned in defence, the same was rejected by the trial court on 15.5.2006 by observing that the last opportunity was given to the applicant and other accused persons to adduce the evidence in defence, but only D.W. 4 Madan Mohan Kakkar was produced and examined in the court and no sufficient reason has been shown to summon the witnesses given in the list and the application dated 19.1.2006 has already been disposed and sufficient opportunity has been given to the accused to put their defence and the accused are trying to linger on the proceedings of the trial.
It is further contended by the learned counsel for the applicant that impugned order dated 15.5.2006 has not been passed in accordance with the provisions of law because the accused are entitled to adduce the evidence in defence otherwise it will cause a prejudice to the right of the accused, therefore, the impugned order dated 15.5.2006 may be set aside and a direction may be issued to summon the witnesses as given by the accused in the list of the witness.
It is opposed by the learned A.G.A. and learned counsel for the complainant by submitting that there is no illegality in the impugned order, but the accused persons are trying to linger on the proceedings of the trial. The present application has also been filed for the same purpose, therefore, the present application may be dismissed.
From the perusal of the impugned order dated 15.5.2006 it appears that the application filed by the applicant has been rejected on the ground that specific reason has not been shown to summon the witnesses and proper opportunity was provided to the applicant to adduce the evidence in defence and in last opportunity only D.W. 4 was produced in the court. The impugned order dated 15.5.2006 does not suffer from any infirmity.
However, considering the fact that the applicant is accused in a case of dowry death where the burden lies upon the shoulder of accused to prove his innocence and to prove that the death of the deceased was not unnatural and according to the provisions of Section 113-B of the Indian Evidence Act, 1872 there is presumption of causing the dowry death is also against such accused. The offence is of serious in nature. In such circumstances also a proper opportunity must be provided to the accused to put his defence before the trial court. If any list of the witnesses has been supplied by the accused to the trial court for producing the witnesses in defence the same be considered and in case any of the witness is not required to be summoned it should be refused by a reasoned order.
In such circumstances, I am of the view that if any fresh application showing the reasons is filed by the applicant within 10 days from today to summon the particular witness/witnesses in his defence the same shall be considered and disposed of in accordance with the provisions of law, if any witness is not required to be summoned he shall not be summoned with a reasoned order.
With the above observations the application is finally disposed of.
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