IMPORTANT POINT
It is duty of the Court to issue summons to material witnesses of the case.

ORDER

L. Manoharan, J. - Petition is under section 482 of the Cr. P.C.

2. P.W. l in Sessions Case No. 83/92 pending trial before the 1st Additional Sessions Court, Thiruvananthapuram is the petitioner. The petitioner seeks to quash Annexure-A order in the said Sessions Case dispensing with the examination of C.Ws. 2, 3, 5 and 13 and to issue direction to take steps for securing the presence of charge witnesses 2, 3 and 5 in the said Sessions Case.

3. Final report in the said case was laid under sections 143, 147, 148, 323 and 302 read with section 149 I.P.C. against 23 accused persons on the allegation that at about 11.30 p.m. on 13.8.1989 near Shanghumugham Palace at Thiruvananthapuram, the accused persons formed themselves into an unlawful assembly with the common object of committing murder of the petitioner's husband Philip Rozario and in prosecution of the said common object they did commit murder of the said Philip Rozario by beating him with iron rods, sticks etc. In the charge sheet, C.Ws. 2, 3, 4 and 5 are cited as occurrence witnesses. The case was posted for trial to 18.1.1993, but since the counsel for accused I to 6 was not doing well, the case was adjourned to 23.2.1993. On 21.1.1993 the public Prosecutor filed a memo containing the present address of C.Ws. 2, 3 and 5, who are employed in Soudi Arabia. On 23.2.1993. P. W. 1 also filed a petition to issue summons to C.Ws. 2, 3 and 5 in their present address. According to the petitioner, the said petition was necessitated as no summons was issued to the said witnesses even though the address of the said witnesses were furnished by the memo of Public Prosecutor dated 21.1.1993. It is alleged that, the Investigating Officer also filed a memo to issue summons to the said witnesses.

4. Annexure-A order contains the proceedings on 26.2.1993, 27.2.1993 and also 1.3.1993. On 1.3.1993, the court passed the order dispensing with the examination of C. W s. 2, 3,5 and

13. The reasons stated in Annexure-A order are that the Public Prosecutor failed to file a report as to the correctness of the address furnished, there would be undue delay and expenses to summon the said witnesses, and that the same would cause prejudice to the accused persons.

5. The learned Public Prosecutor also supported the petitioner and contended, the order of the learned Sessions Judge is illegal and that examination of the said witnesses is necessary for the proper and fair disposal of the case.

6. The learned counsel for the petitioner assailed the order of the learned Sessions Judge contending that it was the duty of the court to summon the said witnesses, particularly, when the Public Prosecutor had furnished the present address of the said occurrence witnesses. This petition mentions the present address of the said witnesses. In the circumstance, it is pointed out by the learned counsel, with due regard to the time of occurrence and also the number of accused, it is necessary that these witnesses are examined and according to the learned counsel, withholding of the examination of the said occurrence witnesses is illegal, as it is not in the interest of justice.

7. These witnesses are material witnesses admits of no doubt. In the decision in Habeeb Mohammad v. State of Hyderabadl, it is held that it is the bounden duty of the prosecution to examine a material witness, particularly, when there was no allegation that he would not speak the truth. The decision proceeds to hold that, in appropriate cases non-examination of material witnesses would invite adverse inference against the prosecution case as per illustration (g) to section 114 of the Evidence Act. In the decision in Narain and others v. State of Punjab2, the Supreme Court observed as to who is a material witness: "The test is whether, the examination of such witness is essential to the unfolding of the narrative on which the prosecution is based." From the nature of the case alleged against the accused persons these witnesses being occurrenc