The court emphasized the accused's right to summon witnesses, highlighting the necessity for the trial court to provide justifiable reasons for any refusal.

1. Heard.

2. In their trial for offences under S.302, S.201, S.120 - B RPC and 4/25 Arms Act, the petitioners (accused) have entered defence evidence vide the trial court order dated 28.09.2016. Their application for calling defence witnesses through court, filed after availing six opportunities for producing the witnesses, has been dismissed by the learned trial court vide its order dated 10.01.2017 with following observation:

'From the perusal of the application submitted by the defence it is evident that all the witnesses sought to be summoned through process of the court are residents of Kanpur. Though it is stated that witnesses are essential for just and proper decision of the case yet it is not disclosed as to how they are essential for the just decision of the case. It is not stated that how the said witnesses are relevant to this case. In the considered opinion of the court application is not sound and well founded. It seems to have been made with a view to protract the decision of this murder case.'

3. This order is impugned in this petition under S.561 - A of the Code of Criminal Procedure .

4. Leading defence evidence is a valuable right of the accused in a criminal trial, which assumes even more importance when trial relates to an offence carrying heavy punishment, like the one under S.302 RPC. Sub section (3) of S.274 of the Code of Criminal Procedure , SVT, 1989 (for short the Code) deals with summoning the defence witnesses through the court and provides also for the Court's power of refusal in this regard. Sub section (3) reads:

'if the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers for reasons to be recorded that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.'

5. The application made on behalf of the accused, costs a duty on the trial court to summon the defence witnesses through process of the court. The issuance of the process, however, can be refused if the court, for the reasons to be recorded, considers that the application should be refused on the ground that, it is made for the purpose of vexation or delay or for defeating the ends of justice.

6. The reasons recorded by the learned trial court in support of the view that application for summoning the witnesses has been filed for the purpose of protracting or delaying the trial does not seem to be well founded. The Code does not require the accused to disclose as to how a particular defence witness, to be summoned through the court is essential or relevant or what evidence he is likely to tender.

7. Viewed thus, this petition is allowed and the impugned order is set aside.

8. Learned trial court shall issue process for summoning the witnesses and, having regard to the fact that the petitioners are in judicial custody, shall ensure prompt service.

9. Learned counsel for the petitioners undertakes that a representative of the petitioners shall collect dasti summons and facilitate service upon the witnesses through the concerned court or the Police Agency, as may be directed by the learned trial court.

10. Registry shall send a copy of this order to the learned trial court.

Disposed of.

Petition allowed.