The accused has an indefeasible right to produce witnesses in his defense, and the court has a plenary power to summon any person at any stage of the proceedings to attain the highest goal of justice.

JUDGMENT :

JYOTSNA SHARMA, J.

1. Heard Sri Nadeem Murtaza, learned counsel for the revisionist and Ms. Charu Singh, learned AGA for the State.

2. This revision has been filed by the revisionist challenging the order dated 03.08.2018 passed by the Additional District and Sessions Judge, FTC-II, Ambedkar Nagar in Session Trial No. 102 of 2012 (State vs. Anupam Singh) arising out of case crime no. 475 of 2011 under section 302 IPC, whereby the permission to examine 5 defence witnesses, was refused.

3. Relevant facts are as below:

The revisionist accused is facing trial in S.T. No. 102 of 2012 under section 302 IPC. During the trial an application on his behalf dated 02.06.2018 was moved with the submissions in brief that the inquest was done in presence of 5 public witnesses and they have been named as prosecution witnesses. The aforesaid 5 prosecution witnesses have not been produced by the prosecution, therefore at least one of them may be summoned and examined as court witness. The aforesaid application was rejected by order dated 27.06.2018 by the trial court. After recording all the statements under section 313 Cr.P.C. the accused moved another application with a request that the witnesses namely, Surendra Pratap Singh, Balram Nishad, Ramdhari Yadav, Ram Siromani Upadhyaya and Ram Suresh Nishad may be summoned as defence witnesses. This application to produce them as defence witness was objected to by the prosecution, submitting that all of them were in fact witness of the inquest report and that they have switched side and have come in collusion with defence and further that the previous application moved by the defence for summoning them, has already been rejected, therefore this application may not be allowed. The learned trial court heard both the sides and rejected this application by order dated 03.08.2018. Now this order dated 03.08.2018 is under challenge by the defence.

4. Most vehement and brief contention of the defence is that the first application was moved under section 311 Cr.P.C. and the second one though moved for production of the same witnesses but the prayer has been made under the provisions of section 233 Cr.P.C. There cannot be comparison between the two and that the accused has indefeasible right to produce witness in his defence. Further contention is that if the summons are not issued to call those persons as defence witnesses, the accused shall be highly prejudiced in his defence and his valuable right as regard fair trial shall stand defeated. The revisionist relies on a judgment of the Supreme Court in State of M.P. vs. Badri Yadav and Another, (2006) 9 SCC 549.

5. Section 311 Cr.P.C. is as below:

“311. Power to summon material witness, or examine person present - Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.”

Under the provisions of section 311 Cr.P.C. the court has a plenary power to summon any person at any stage of the proceedings as a witness. This power includes recall and re-examination of any person who has already been examined. This power is to be exercised when the court finds it necessary to summon/recall any witness for just decision of the case. The law puts no fetters on the powers of the courts to call for any witness to attain the highest goal of justice. In my opinion this provision of law gives expression to the inherent power of the courts which is available to them by virtue of being the supreme authority who has been entrusted with responsibility to do justice. The power lies with the Court alone as juxtaposed to rights or powers of parties. The others stake holders whether prosecution or defence, have a limited role of drawing the attention of the court and putting th