State of Uttarakhand v. Mr. Pawan Mishra, learned counsel for the

Judgment

1. This criminal miscellaneous application under Section 482 of the Code of Criminal Procedure has been filed by the Applicant, Rashid Ahmad @ Taufeeq, seeking quashing of the order dated 10.09.2021 passed by the learned Special Judge, NDPS Act, Dehradun, in Special Sessions Trial No. 23 of 2014, State v. Riyasat Ali and others, whereby the application filed by the Applicant (Paper No. 35kha) for summoning certain witnesses in defence was rejected.

As per the FIR bearing Case Crime No. 109 of 2013, which was registered on 29.04.2013 at Reporting Outpost Premnagar, Police Station Cantt, District Dehradun, under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, alleging recovery of 4 kilograms of charas. The Applicant was arrested in the said case, and two other co-accused were also implicated based on the same recovery.

3. The Applicant was initially granted interim bail and subsequently regular bail by this Court in Bail Application No. 1063 of 2013. While granting bail, this Court had occasion to peruse the arresting officials' call detail records (CDRs). It noted discrepancies casting doubt on the presence of the officers at the scene of the occurrence. Criminal Misc. Application No.1541 of 2021, Rashid Ahmad @ Taufeeq Vs State of Uttarakhand- 1 Ashish Naithani J.

4. During the course of the trial, the prosecution examined ten witnesses. When the defence stage commenced under Section 233 CrPC, the Applicant moved an application (Paper No. 35kha) dated

05.03.2021 before the trial court seeking summoning of nine witnesses, primarily police officials, to substantiate his plea of false implication and to rely upon their mobile location and call data records already on file.

5. The learned trial court vide order dated 06.03.2021 partly allowed the application by summoning only two witnesses and rejected the prayer for the rest, primarily on the ground that summoning them would infringe upon their privacy, particularly in relation to their call details.

6. Aggrieved by the partial rejection, the Applicant approached this Court in Criminal Miscellaneous Application No. 639 of 2021, which was disposed of on 05.04.2021 with a direction to the trial court to reconsider the rejecting portion of the order dated 06.03.2021 in the light of Section 233(3) CrPC.

7. Upon remand, the trial court vide impugned order dated

10.09.2021 again rejected the prayer for summoning the remaining witnesses, this time reasoning that the application was intended to cause delay and to harass the prosecution witnesses

8. Learned Counsel for the Applicant, Shri Pawan Mishra, submitted that the impugned order dated 10.09.2021 suffers from a patent non-application of mind and is in direct contravention of the earlier direction issued by this Court vide order dated 05.04.2021 in Criminal Misc. Application No. 639 of 2021. It was argued that this Court had specifically directed the trial court to reconsider the rejecting portion of its earlier order in light of the statutory mandate of Section 233(3) CrPC, which obliges the court to summon defence witnesses unless it is satisfied that the request is made solely for the purpose of Criminal Misc. Application No.1541 of 2021, Rashid Ahmad @ Taufeeq Vs State of Uttarakhand- 2 Ashish Naithani J. vexation, delay, or defeating the ends of justice. Instead of conducting such a statutory inquiry, the trial court proceeded to summarily reject the request on generalized and unsubstantiated grounds.

9. It was further pointed out that the witnesses sought to be summoned were mostly police officials whose presence at the place of occurrence had been questioned by this very Court at the bail stage, upon a detailed examination of their call detail records. The refusal to allow their summoning, despite the existence of relevant documentary evidence on record and the Applicant’s right to substantiate his defence, has, according to learned Counsel, resulted in grave prejudice and renders the trial unfair.

10. Learned Counsel further submitted that the reasoning employed by the trial court, that the application was intended to delay the proceedings and harass the prosecution witnesses,is wholly misconceived and speculative. The witnesses proposed to be summoned are not private individuals, but government functionaries allegedly part of the arresting and investigating team. Their examination would not cause any undue harassment or invasion of privacy, especially when their mobile numbers and call details have already been brought on record and exhibited during trial proceedings.

11. Per contra, learned Additional Government Advocate Shri Vipin Painuli, appearing on behalf of the State, opposed the application by submitting that the trial is at an advanced stage and the repeated efforts by the Applicant to summon additional witnesses are a clear ploy to delay the conclusion of proceedings.

12. He submitted that ten prosecution witnesses have already been examined, including the investigating officers, the recovery witnesses, and other officials connected with the case. The Applicant's statement under Section 313 CrPC has also been recorded, and the defence has already examined two witnesses, namely Ravikant Tyagi and Keval Criminal Misc. Application No.1541 of 2021, Rashid Ahmad @ Taufeeq Vs State of Uttarakhand- 3 Ashish Naithani J. Khurana. It was contended that permitting further evidence at this stage would amount to giving the Applicant a second opportunity to reopen settled factual issues and prolong the trial indefinitely.

13. Learned AGA emphasized that the impugned order does not reflect any illegality or procedural irregularity, and the discretion exercised by the trial court in refusing to summon the remaining witnesses does not warrant interference in the exercise of the Court’s inherent jurisdiction under Section 482 CrPC.

14. 15. Heard learned counsel for the Parties and perused the records. This court takes note of the fact that, Section 233(3) CrPC provides that if the accused applies to the Court to issue any process for compelling the attendance of any witness for examination or cross- examination, the Court shall issue such process unless it considers that such application is made for vexation or delay or for defeating the ends of justice. The provision's language makes it clear that the Court's discretion is not absolute and must be exercised judiciously, considering the constitutional guarantee of a fair trial.

16. In State of Rajasthan v. Ani, (1997) 6 SCC 162, the Hon’ble Supreme Court held that denying permission to summon material defence witnesses amounts to denying a fair trial. Similarly, in Zahira Habibullah Sheikh v. State of Gujarat, (2006) 3 SCC 374, the Court reiterated that fair trial is not a privilege of the accused but a constitutional guarantee flowing from Article 21. These principles impose a corresponding duty on the trial court to allow the defence an effective opportunity to present its case, unless compelling reasons exist to reject the request.

17. The trial court failed to discharge this duty in the present case. It neither recorded any findings as to the relevance or irrelevance of the witnesses sought to be summoned nor did it examine whether the evidence proposed would cause vexation or unnecessary delay. The Criminal Misc. Application No.1541 of 2021, Rashid Ahmad @ Taufeeq Vs State of Uttarakhand- 4 Ashish Naithani J. bald assertion that the application was meant to harass the prosecution witnesses is not supported by any concrete reasoning or factual basis. Importantly, the proposed witnesses are public servants whose call detail records had been earlier relied upon by this Court while granting bail, and were also exhibited in the trial. These witnesses were stated to be present on the spot during the arrest and recovery proceedings, which the Applicant contests based on mobile location records.

18. Once this Court had already directed the trial court to reconsider the matter in light of Section 233(3) CrPC, the trial court was expected to evaluate the application afresh on merits. The repeated rejection without addressing the statutory test or the evidentiary value of the proposed witnesses amounts to disregard of the binding directions of this Court and results in a miscarriage of justice.

19. The Applicant cannot be denied the right to summon defence witnesses who may directly rebut the prosecution’s version, especially when the documents supporting his contention are already part of the record. The objection of delay cannot override the statutory right of the accused to present his defence. The apprehension of harassment appears misplaced, particularly when the witnesses are public servants.

20. This Court is mindful of the principle that inherent jurisdiction under Section 482 CrPC is to be exercised sparingly and with caution. However, where the trial court's order reflects a mechanical rejection of a statutory right, despite specific directions by the High Court, and where such rejection results in prejudice to the accused, the interference becomes not only warranted but necessary. ORDER The criminal miscellaneous application stands allowed. The impugned order dated 10.09.2021 is hereby quashed insofar as it rejects the Applicant’s prayer to summon the remaining defence witnesses at serial numbers 1, 3, 4, 5, 6, 7, and 9 of Paper No. Criminal Misc. Application No.1541 of 2021, Rashid Ahmad @ Taufeeq Vs State of Uttarakhand- 5 Ashish Naithani J. 36kha. The trial court shall summon the said witnesses and proceed to record their evidence, in accordance with law. (Ashish Naithani J.) Dated:11.06.2025 NR/ NITESH RAWAT DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=bea38a9cb7bca67cc3988ad9 3d563d95c70eb77fa0ea4758e401cf43 6bdce9fb, postalCode=263001, st=UTTARAKHAND, serialNumber=F691686B3C447434E8 9897BCDC0B6567DCE4B7108B324FFE D3C8A159F3BDD03C, cn=NITESH RAWAT Criminal Misc. Application No.1541 of 2021, Rashid Ahmad @ Taufeeq Vs State of Uttarakhand- 6 Ashish Naithani J.