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2019 Supreme(All) 850
IN THE HIGH COURT OF ALLAHABAD
Rajul Bhargava, J.
Mukesh Sharma – Appellant
Versus
State of U.P. and Another – Respondents
Application U/S 482 No. 24545 of 2019
Decided On : 31-07-2019
J.B. Singh, Adv., Deepak Dubey, Adv., Sidharth Shankar Mishra, Adv.
The accused has the fundamental right to summon witnesses for defence evidence, including to establish an alibi, and the rejection of such applications should be based on valid grounds and in line with the principles of fair trial and the presumption of innocence.
Headnote:
Alibi - Criminal Law - 7 Criminal Law Amendment Act, 1860, Section 233(2) Cr.P.C. - The court discussed the provisions of Section 233(3) Cr.P.C. and the accused's right to summon witnesses for defence evidence. It highlighted the importance of fair trial and the accused's right to present evidence to prove innocence. The court emphasized that the accused's right to silence and the presumption of innocence are fundamental principles of criminal jurisprudence. The judgment quashed the impugned orders and allowed the applicant to apply for compelling the attendance of defence witnesses within two weeks, directing the trial judge to expedite the trial and decide the case within four months.
Fact of the Case:
The applicant sought to quash the impugned orders passed by the Additional District and Sessions Judge, Hapur in a criminal trial. The case involved charges under Sections 147, 148, 149, 302, 120-B I.P.C. and 7 Criminal Law Amendment Act, relating to a family property dispute and a fatal shooting. The applicant claimed an alibi, stating that he was in Nepal at the time of the incident.
Finding of the Court:
The court found that the rejection of the applicant's application for summoning defence witnesses was unjustified and emphasized the accused's right to present evidence to establish innocence. It quashed the impugned orders and allowed the applicant to apply for compelling the attendance of defence witnesses within two weeks, directing the trial judge to expedite the trial and decide the case within four months.
Issues: The key issue was whether the accused had the right to summon witnesses for defence evidence, particularly to establish an alibi, and whether the rejection of the applicant's application was lawful.
Ratio Decidendi: The court emphasized the accused's right to fair trial, the presumption of innocence, and the right to present evidence to prove innocence. It highlighted the importance of the accused's right to silence and the need for a reasonable approach in allowing the summoning of defence witnesses. The judgment emphasized that the accused's right to summon witnesses for defence evidence is a fundamental right and should not be curtailed unjustly.
Final Decision: The impugned orders were quashed, and the applicant was allowed to apply for compelling the attendance of defence witnesses within two weeks. The trial judge was directed to expedite the trial and decide the case within four months.
JUDGMENT :
Rajul Bhargava, J.
Heard Sri J.B. Singh, learned counsel for the applicant, Sri Deepak Dubey and Sri Siddhartha Shankar Mishra, learned counsels for opposite party no. 2 as well as learned A.G.A. and perused the material placed on record.
2. Instant application has been filed with the prayer to quash the impugned order dated 30.1.2019 and 14.06.2019 passed by Additional District and Sessions Judge, Hapur in Session Trial No.253 of 2016 (State Versus Ankush and others) bearing Case Crime No.408 of 2014 under Sections 147, 148, 149, 302, 120-B I.P.C. and 7 Criminal Law Amendment Act, Police Station Hapur Nagar, District Hapur and further direct learned trial judge to summon the witness i.e. record keeper/Officer of (Immigration Department), Indira Gandhi International Airport, New Delhi along with record as mentioned in the application moved by the applicant under Section 233(2) Cr.P.C.
3. The factual background, in short, giving rise to present petition is that according to prosecution the F.I.R. was lodged by opposite party no.2 against six accused persons including the applicant registered under aforesaid case crime number and sections on 13.07.2014 at 1.15 p.m. It is alleged that the applicant and his associates on account of enmity over family property dispute on 13.07.2014 at 11.45 a.m. surrounded informant's son in front of his house and all the accused resorted to indiscriminate firing due to which he succumbed to the injuries subsequently. After investigation charge-sheet was laid and the case was committed to the court of sessions. It is pertinent to mention here that the applicant is in jail since 5.12.2014. The applicant moved his bail application in which he has taken specific plea that aforesaid incident took place at about 11.45 a.m. on 13.07.2014 near the house of the deceased but in fact the applicant was not present in India at the time and date of the incident and was present in Nepal. In fact, the applicant along with his brother, Sanjay had gone to Kathmandu on 12.07.2014 by Indigo No.6E31 and the flight departed at 11.25 a.m. on 12.07.2014, the copy of Boarding Passes and air tickets were also appended along with the bail application. It was also stated that the applicant and co-accused, Sanjay came back from Kathmandu to New Delhi by Indigo Flight No.6E34, departure time 8.10. p.m. on 13.07.2014 and the applicant was travelling in the said Flight on Seat No.47. The copies of the air tickets and the Boarding Passes and relevant documents were also appended along with bail application. It was also stated that during 12.07.2014 and 13.07.2014, he and co-accused, Sanjay stayed in Shiv Shanker Hotel Jaybageshwar Pashupati Nath, Kathmandu, Nepal. Copy of the receipt of said hotel was also appended with the bail application. Therefore, a specific plea of alibi was taken that it was impossible for the applicant to be present at the place of occurrence on 13.07.2014 at about 11.45 a.m. by no stretch of imagination.
4. The case was committed to the court of sessions. After the closure of prosecution evidence, the statement of the applicant and other accused was recorded under Section 313 Cr.P.C. on 12.11.2018. In reply to a specific question as to whether the applicant wants to lead any defence evidence, to which his answer was in affirmative ¼th gkWa½ . Thereafter, the case was fixed for defence evidence. Insofar as the applicant is concerned, he moved an application 28Ga under Section 233 Cr.P.C. to summon the witnesses mentioned in the application to prove his plea of alibi that he was travelling from New Delhi to Kathmadu and Kathmandu to New Delhi in Indigo Flight No.6E31 and 6E34 on 12.07.2014 and 13.07.2014. In its proof, tickets and boarding passes were also appended with the application. Besides it, in support of plea of alibi papers regarding stay of the applicant in Shiv Shanker Hotel Jaybageshwar Pashupati Nath, Kathmandu, Nepal were also filed, especially the cash receipts. The prayer for summoni
