JUDGMENT :

[Umesh Chandra Sharma, J.]

1. Heard Shri Atharva Dixit, learned counsel for the applicants and Shri Pankaj Kumar Tripathi, learned A.GA. for the State. Perused the material available on record.

2. By this application, the applicants have challenged the order dated 21.11.2022 passed in Session Trial No. 392 of 2009 (Stae Vs. Sanjeef Kumar and others) arising out of Case Crime No. 142 of 2009 under Section 498A, 304 B I.P.C. and Section 3/4 of the D.P. Act, with an alternative charge under Section 302 IPC Police Station-Lanka, District-Varanasi and grant an opportunity to the applicants to lead their defence evidence.

3. In brief facts of the case are that the aforesaid trial is going on in the Court of Additional District Judge/ FTC Court No. 14th Finance Commission, Varanasi, on the allegations that the daughter of the first informant had solemnized her marriage with the applicant no. 1 on 18.4.2006. The applicants demanded dowry and administered poison to her due to which she was hospitalised and ultimately died on 27.3.2009. After submission of charge-sheet, the charges were framed and the trial commenced. It is contended that seeing the deteriorating condition of applicant no.3 Kusum Devi, she was kept under medical observation and had been hospitalized for treatment on 10.11.2022 and since then she is in hospital and due to this reason the applicants were unable to lead defence evidence. The matter was lastly listed on 15.11.2022 for the defence evidence but due to ill health of the applicant's counsel an adjournment application before the Court below was moved.

4. On 21.11.2022 an application was moved to provide an opportunity to lead the evidence of examining the defence witness. However, the said application was rejected in a mechanical and arbitrary manner by order dated 21.11.2022 which is under challenge before this Court on the ground that the order has been passed in a very perfunctory and malafide manner which is against the principles of natural justice and the right to fair trial. The trial is pending since 2009 and the prosecution has completed its evidence only in the year 2022. The prosecution has led its evidence in a period of over 13 years. It is a case under Section 304 B I.P.C. where statutory presumption under Section 113B of the Indian Evidence Act exists against the accused persons which is rebuttable in nature and it can be rebutted only by leading defence evidence. In absence of any opportunity to lead the defence witnesses, the defence would be deprived of its right to rebut such presumption. The learned Court below under undue haste is not granting opportunity of defence and is adopting two different parameters with respect to the prosecution and the defence. It has already been upheld in various cases by the Apex court as well as different High Courts that any person can be summoned or recalled as a witness for examination at any stage of the proceedings where it is essential. All the applicants are on bail pending trial, therefore, impugned order be set-aside and an opportunity be granted to the applicants to lead their defence evidence.

5. The copy of the impugned order and relevant papers have been annexed with the petition.

6. By way of supplementary affidavit dated 28.11.2022, the applicants have produced the certified copy of the chick FIR and the impugned order. By way of supplementary affidavit no. 1/2022 copy of the order-sheet and the questionnaire have been filed.

7. Heard learned counsel for the applicants and learned A.G.A. Perused the record.

8. From perusal of the order-sheet it transpires that the prosecution could not conclude its evidence for a decade but after recording statement under Section 313 Cr.PC., the case was fixed for production of defence evidence. The learned Trial Court started taking defence evidence. On 15.10.2022 and 19.10.2022, the learned Trial Court awarded Rs. 500/-cost on the adjournment of the accused-applicants and granted opportunity to produ