The discretion to summon witnesses under Section 233(3) of the Criminal Procedure Code should be exercised judiciously, and applications must establish the relevance of the witnesses and not be aimed at delaying the trial.

JUDGMENT :

1. Heard learned counsel for the applicant and learned AGA for the State and perused the record.

2. The present petition has been filed for the following main relief:-

"For the facts reasons and circumstances mentioned in the accompanying affidavit, it is most respectfully prayed that this Hon'ble Court may kindly be pleased to quash the order dated 17/10/2023, passed by Learned Additional District and Session Judge Court No. 05/ Special Judge (Gangster Act.) Gonda, (State Vs. Ramesh and Ors.) in Session Trial No. 198 of 2003, in the interest of justice."

3. Brief facts of the case, as indicated, are to the effect that an FIR was registered by the police on 14.07.1997 at about 13.40, with regard to an incident occurred in the night of 13/14.04.1997. The prosecution story narrated in the FIR, in short, is that the named accused persons including the petitioner came to the house of the informant namely Vasudev Mishra, in the night of 13/14.04.1997 at about 2:30 A.M. and assaulted the sons of the informant with Hathgola and Gun & Katta with the intention to cause death and also demolished the newly constructed wall. Thus, general allegations were leveled in the FIR dated 14.07.1997, against the named accused persons including the petitioner.

4. During the course of trial the statement of the petitioner under Section 313 Cr.P.C. was recorded by the Trial Court on 10.08.2023. In this statement the petitioner stated that at the time of alleged incident the licensed gun of petitioner's father was deposited in the police station and he had gone to his brother's house at Lucknow.

5. After the aforesaid, the petitioner preferred an application No. 307 Kha dated 24.08.2023, praying therein that head Moharrir P.S.-Tarabganj, Distt.-Gonda, who had deposited the licensed gun of petitioner's father bearing gun No. 26797, be summoned for examination to prove that the licensed gun and two cartages (Kartoos), were deposited in the police station by the petitioner after demise of his father on 13.03.1996. Another application No. 308 Kha was preferred by the petitioner, wherein he prayed to summon the Prabhari Adhhikari (Ayudh) Office of District Magistrate, Gonda, to prove the fact that the licensed gun was released on 22.02.2001 in favour of legal heirs of late Umashankar, as the petitioner claims that the licensed gun of his father was not available at the time of alleged occurrence and therefore the alleged presence of the petitioner at the place of alleged occurrence would become foul version of the informant. The petitioner had also preferred a list of the witnesses to be summoned.

6. By means of the impugned order dated 17.10.2023 (Annexure No.1), the trial Court has rejected the above indicated applications of the petitioner.

7. Assailing the order impugned dated 17.10.2023, learned Counsel for the applicant stated that the Additional District and Sessions Judge, Court No.5/ Special Judge (Gangster Act), Gonda, in Session Trial No. 198 of 2003 vide its order dated 17.10.2023, rejected the application(s) no. 306kha, 307kha, 308kha preferred by the applicant for summoning the witnesses namely Head Moharrir, Police Station Tarabganj, District Gonda, and Prabhari Adhikari (Ayudh), Office of District Magistrate Gonda as also Sri Shashi Shekhar Ojha, Praveen Kumar Srivastava, Raghav Ram Pandey, Surendra Kumar Tiwari, Babban Pandey, Harishanker Barai, Devdadeen and Chandramani Tiwari, in a utter arbitrary and illegal manner.

8. He further submitted that allegations against the applicant in the FIR is to the effect that at the time of alleged incident he was holding a gun and as such to support the case setup by the applicant at the stage of 313 Cr.P.C., wherein the applicant specifically indicated that the licensed gun of father of the petitioner was deposited in P.S. Tarabganj, Gonda and on the date of alleged incident the applicant was not present at the place of crime as he had gone to the house of his brother situated at Lucknow, the witne