Important Point
Accused has a right to seek attendance of any witness and Court has been enjoined with power of compelling such witness to appear unless court records reasons for turning down claim of accused.

ORDER

M.S. Rajendra, Prasad, J— Though the matter is listed for admission by consent of both sides, the matter is taken up for final disposal.

2. This petition, by accused No.2, is filed under Section 482 Cr.P.C., praying to set aside the order dt. 31-10-2003 passed by the XXIII Addl. City Civil and Sessions Judge, Bangalore, in SC No. 460/96, and to direct the Trial Court to secure the presence of DW4 and to proceed with the case, challenging the legality and validity of the proceedings.

3. The Court has heard the arguments of Sri C.H. Hanumantharaya, the learned Counsel on behalf of the petitioner and Sri. C. Ramakrishna, HCGP on behalf of respondent-State.

4. The learned Counsel for petitioner strenuously contended that the material on record clearly goes to show that the order impugned is illegal and invalid. The learned Sessions Judge had failed to afford full and fair opportunity to the petitioner to prove the defence side and for no fault of the petitioner process had not been served on the witness and for that reason the claim of the petitioner cannot be defeated. The learned Counsel also contended that the learned Sessions Judge is not right in closing the case of the accused in a hurried manner. Hence, the learned Counsel has prayed for allowing for petition.

5. On the contrary, the learned Counsel for respondent strenuously contended that the order impugned is legal and proper and the material on record clearly goes to show that the accused had failed to examine the witnesses in spite of giving sufficient opportunity and it was an old case and the learned Sessions Judge, therefore, totally justified in passing the impugned order. Hence, learned Counsel has prayed for dismissal of the petition.

6. The Court has carefully perused the material on record and gave its anxious thoughts over the rival contentions raised at the Bar.

7. From the material on record, it is seen that the petitioner is one of the accused in the said case where the petitioner alongwith others are facing trial in respect of various offences under IPC and in particular, Section 302 IPC. After examination of the accused under Section 313 Cr.P.C. the Trial Court had called upon the accused to enter defence. Accused Nos. I to 5, in particular, had filed a memo furnishing the list of witnesses and DWs 1 and 2 had been examined. At that stage, on 27-9-2003, the summons issued to Dr. Krishnappa, CMO, Victoria Hospital, Bangalore, had been served and witness had remained absent. The learned Sessions Judge had ordered for issue of bailable warrant to the witness and on 22-10-2003 the bailable warrant was returned without execution with an endorsement that the witness had refused the process. Later on, the Court ordered for issue of NBW and on 31-10-2003, the NBW issued to the witness had not been returned. At that stage, the learned Sessions Judge felt that it was an old case and in spite of issuing NBW, the accused Nos. 1 to 5 have not let in further defence evidence, hence the Trial Court closed the side of the accused and the matter is posted for arguments. At this stage, instant petition has been filed.

8. It is settled principle of law that the powers of this Court under Section 482 Cr.P.C. are to be exercised with due care, caution and circumspection and in rarest of rare cases.

9. From the material on record, it is seen that the accused have been facing serious charge of murder, in addition to other charges. At this stage it is necessary to quote the provisions of Section 233 (3) of Cr.P.C.

“If the 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.”

The provisions of Section 233 Cr.P.C. provide that the accused has a right to s