High Court · 2025

1. Heard Sri Dharmendra Singhal, learned Senior Advocate assisted by Sri Shesh Narain Mishra, learned counsel appearing for the revisionist and learned Additional Government Advocate appearing for the State.

2. The instant criminal revision has been filed challenging therein, the order dated 27.02.2025 passed by the learned Additional Sessions Judge, Court No. 2, Ghaziabad in S.T. No. 1385 of 2003 (State Vs. Chetendra Pal) whereby, the application filed by the revisionist, under Section 233 Cr.P.C. for summoning Dr. Ajay Agrawal, Dr. Miss. Vinod Rajeev, Dr. H.S. Rastogi and Dr. Rahul Mittal as defence witnesses, had been rejected.

3. It has been contended on behalf of the revisionist that the instant criminal case came into existence in the year 2003 and thereafter, the prosecution had completed its evidence on 10.02.2024. After completion of the prosecution evidence, the revisionist was allowed to lead defence evidence in support of his case. The revisionist called upon D.W. 1 & D.W. 2 and their testimony was recorded. Later on, the statement of the revisionist under Section 313 Cr.P.C. was recorded. It has further been contended that the prosecution preferred an application for calling upon a witness to prove the report given by the Forensic Science Laboratory and that application was allowed and the witness was called upon and his testimony was recorded on 10.09.2024. Thereafter the statement of the revisionist under Section 313 Cr.P.C. was again recorded.

4. At this stage, the revisionist filed an application under Section 311 Cr.P.C. praying therein, that the trial court may call upon the aforesaid witnesses but that application was rejected by the trial court vide order dated 18.05.2024. Thereafter the revisionist had filed an application under Section 233 Cr.P.C. but the said application had been rejected on the ground that the revisionist anyhow wants to delay the trial.

5. Learned Senior Advocate appearing for the revisionist has argued that once after closure of the defence evidence and recording of statement under Section 233 Cr.P.C., the trial court allowed the prosecution to call upon a witness to prove the report of the Forensic Science Laboratory and testimony of that witness had been recorded, there was no occasion for the trial court to record a finding that it is the revisionist who is trying to delay the proceedings of the trial by filing an application under Section 233 Cr.P.C.

6. Learned Senior Advocate appearing for the revisionist has vehemently argued that the provisions made under Section 233 Cr.P.C. gives full liberty to an accused to call upon the relevant witnesses for supporting his case and once an application has been filed under Section 233 Cr.P.C. by the revisionist for calling upon certain doctors as witnesses, there is no reason for the trial court to reject that application on the ground that earlier application filed under Section 311 Cr.P.C. had been rejected and the intention of the revisionist is to delay the trial. It has also been argued that so far as the ground of delay taken by the trial court is concerned, that on its face, is absolutely incorrect as it was the prosecution which took about 11 years to complete its evidence therefore delay, if any, in conclusion of the trial, cannot be attributed to the revisionist.

7. Learned Additional Government Advocate appearing for the State has opposed this criminal revision but could not point out any plausible reason for which the trial court can reject the revisionist's application filed under Section 233 Cr.P.C.

8. I have considered the arguments advanced by the learned counsel appearing for the parties and I find that Section 233 Cr.P.C. permits the accused to call witnesses in support of his case. For ready reference, Section 233 Cr.P.C. is extracted as under: "233. Entering upon defence. (1) Where the accused is not acquitted under Section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof. (2) If the accused puts in any written statement, the Judge shall file it with the record. (3) 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."

9. The facts of the case, if taken altogether, categorically reflect that it is the prosecution who has taken 11 years to complete its evidence. Thereafter, when the trial was on the verge of completion, an application was filed by the prosecution for calling upon the witness to prove the report of the F.S.L. just to fill up the lacuna and that application was allowed. Once the trial court had granted 11 years' time to the prosecution to complete its evidence and after completion of almost entire proceedings, it again granted opportunity to the prosecution to call upon another witness to fill up the lacuna, there does not seem any reason or occasion to deny the simple opportunity to the revisionist to call upon certain doctors as witnesses in his defence.

10. It appears that the trial court, without considering the relevant facts and circumstances of the case and without taking into account the provisions made in Section 233 Cr.P.C., had proceeded to reject the application filed by the revisionist.

11. In view of the aforesaid reasons, this criminal revision is allowed.

12. The order dated 27.02.2025, passed by the learned Additional Sessions Judge, Court No. 2, Ghaziabad in S.T. No. 1385 of 2003 (State Vs. Chetendra Pal), is hereby set-aside.

13. The trial court is directed to consider and decide the application filed by the revisionist under Section 233 Cr.P.C. afresh, within a period of one month from the date of presentation of certified copy of this order. Order Date :- 8.7.2025 A. Mandhani ABHISHEK MANDHANI High Court of Judicature at Allahabad

1. Heard Sri Dharmendra Singhal, learned Senior Advocate assisted by Sri Shesh Narain Mishra, learned counsel appearing for the revisionist and learned Additional Government Advocate appearing for the State.

2. The instant criminal revision has been filed challenging therein, the order dated 27.02.2025 passed by the learned Additional Sessions Judge, Court No. 2, Ghaziabad in S.T. No. 1385 of 2003 (State Vs. Chetendra Pal) whereby, the application filed by the revisionist, under Section 233 Cr.P.C. for summoning Dr. Ajay Agrawal, Dr. Miss. Vinod Rajeev, Dr. H.S. Rastogi and Dr. Rahul Mittal as defence witnesses, had been rejected.

3. It has been contended on behalf of the revisionist that the instant criminal case came into existence in the year 2003 and thereafter, the prosecution had completed its evidence on 10.02.2024. After completion of the prosecution evidence, the revisionist was allowed to lead defence evidence in support of his case. The revisionist called upon D.W. 1 & D.W. 2 and their testimony was recorded. Later on, the statement of the revisionist under Section 313 Cr.P.C. was recorded. It has further been contended that the prosecution preferred an application for calling upon a witness to prove the report given by the Forensic Science Laboratory and that application was allowed and the witness was called upon and his testimony was recorded on 10.09.2024. Thereafter the statement of the revisionist under Section 313 Cr.P.C. was again recorded.

4. At this stage, the revisionist filed an application under Section 311 Cr.P.C. praying therein, that the trial court may call upon the aforesaid witnesses but that application was rejected by the trial court vide order dated 18.05.2024. Thereafter the revisionist had filed an application under Section 233 Cr.P.C. but the said application had been rejected on the ground that the revisionist anyhow wants to delay the trial.

5. Learned Senior Advocate appearing for the revisionist has argued that once after closure of the defence evidence and recording of statement under Section 233 Cr.P.C., the trial court allowed the prosecution to call upon a witness to prove the report of the Forensic Science Laboratory and testimony of that witness had been recorded, there was no occasion for the trial court to record a finding that it is the revisionist who is trying to delay the proceedings of the trial by filing an application under Section 233 Cr.P.C.

6. Learned Senior Advocate appearing for the revisionist has vehemently argued that the provisions made under Section 233 Cr.P.C. gives full liberty to an accused to call upon the relevant witnesses for supporting his case and once an application has been filed under Section 233 Cr.P.C. by the revisionist for calling upon certain doctors as witnesses, there is no reason for the trial court to reject that application on the ground that earlier application filed under Section 311 Cr.P.C. had been rejected and the intention of the revisionist is to delay the trial. It has also been argued that so far as the ground of delay taken by the trial court is concerned, that on its face, is absolutely incorrect as it was the prosecution which took about 11 years to complete its evidence therefore delay, if any, in conclusion of the trial, cannot be attributed to the revisionist.

7. Learned Additional Government Advocate appearing for the State has opposed this criminal revision but could not point out any plausible reason for which the trial court can reject the revisionist's application filed under Section 233 Cr.P.C.

8. I have considered the arguments advanced by the learned counsel appearing for the parties and I find that Section 233 Cr.P.C. permits the accused to call witnesses in support of his case. For ready reference, Section 233 Cr.P.C. is extracted as under: "233. Entering upon defence. (1) Where the accused is not acquitted under Section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof. (2) If the accused puts in any written statement, the Judge shall file it with the record. (3) 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."

9. The facts of the case, if taken altogether, categorically reflect that it is the prosecution who has taken 11 years to complete its evidence. Thereafter, when the trial was on the verge of completion, an application was filed by the prosecution for calling upon the witness to prove the report of the F.S.L. just to fill up the lacuna and that application was allowed. Once the trial court had granted 11 years' time to the prosecution to complete its evidence and after completion of almost entire proceedings, it again granted opportunity to the prosecution to call upon another witness to fill up the lacuna, there does not seem any reason or occasion to deny the simple opportunity to the revisionist to call upon certain doctors as witnesses in his defence.

10. It appears that the trial court, without considering the relevant facts and circumstances of the case and without taking into account the provisions made in Section 233 Cr.P.C., had proceeded to reject the application filed by the revisionist.

11. In view of the aforesaid reasons, this criminal revision is allowed.

12. The order dated 27.02.2025, passed by the learned Additional Sessions Judge, Court No. 2, Ghaziabad in S.T. No. 1385 of 2003 (State Vs. Chetendra Pal), is hereby set-aside.

13. The trial court is directed to consider and decide the application filed by the revisionist under Section 233 Cr.P.C. afresh, within a period of one month from the date of presentation of certified copy of this order. Order Date :- 8.7.2025 A. Mandhani ABHISHEK MANDHANI High Court of Judicature at Allahabad