The accused has an unfettered right to summon witnesses essential for the defence, and the trial court's discretion to reject such requests is limited to preventing vexation or delay.

JUDGMENT :

Heard the parties.

2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 with a prayer to quash/set aside the order dated 22.03.2025 passed in M.C.A. No.500 of 2025 in connection with S.T. Case No.581 of 2023 (arising out of Parsudih P.S. Case No.92 of 2023) by the learned Additional Sessions Judge-VII, Jamshedpur, whereby and where under the learned Additional Sessions Judge-VII, Jamshedpur, has rejected the petition filed by the petitioner under Section 233 (3) of the Cr.P.C. for issuing summons to the four witnesses whose names and address have been mentioned in para-2 of the petition dated 05.03.2025 filed by the petitioner- who is the accused person of the said S.T. Case No.581 of 2023 (arising out of Parsudih P.S. Case No.92 of2023, in the court of learned Additional Sessions Judge-VII, Jamshedpur,.

3. The brief fact of the case is that during trial, after closure of the evidence of the prosecution, statement under Section 313 of the Cr.P.C. has been recorded. Thereafter the petitioner, who is the accused person of the said case, was given opportunity to adduce defence evidence. After examining one defence witness, the petitioner filed the petition to examine four witnesses whose statement has been recorded under Section 161 Cr.P.C. by the Investigating Officer of the case during the investigation of the case but they were not cited as the witnesses in the charge-sheet. The learned Additional Sessions Judge-VII, Jamshedpur observing that, since the statement of the witnesses sought to be examined by the petitioner in his defence are already available in the record and the same can be looked into by the trial court, hence, the examination of the witnesses sought to be examined by the petitioner, will amount to wasting the time of the court; rejected the said application filed by the petitioner, by the impugned order dated 22.03.2025.

4. Learned senior counsel appearing for the petitioner submits that the learned trial court failed to consider that the examination of the four witnesses sought to be examined by the petitioner in his defence are such witnesses whose testimony is essential for the just decision of the case. It is next submitted that the learned trial court also failed to consider that the witnesses sought to be examined by the petitioner are material witnesses and the learned trial court has arbitrarily rejected the petition filed by the petitioner without considering the settled principle of law.

5. Learned senior counsel for the petitioner relies upon the judgment of the Hon’ble Supreme Court of India in the case of Sunder Lal vs. State of Uttar Pradesh & Another reported in (2024) 6 SCC 639 wherein the Hon’ble Supreme Court of India has considered that there is no bar in law for examining the witnesses whom the prosecution chose to discharge; to be examined as defence witnesses, as it is for the trial court to consider the evidentiary value of such witnesses, while coming to its conclusion. Hence, it is submitted that the prayer as prayed for in the instant Cr.M.P., be allowed.

6. Learned Addl.P.P. appearing for the State vehemently opposes the prayer of the petitioner made in the instant Cr.M.P. and submits that the petitioner was deliberately delaying the disposal of the sessions trial and taking note of the delaying tactics of the petitioner, the learned trial court has rightly rejected the prayer. Hence, it is submitted that this Cr.M.P., being without any merit, be dismissed.

7. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that it is a settled principle of law that calling upon the accused to enter his defence under Section 233 of the Code of Criminal Procedure; is not a mere empty formality but is an essential part of a criminal trial. The discretion of the court to reject an applic