@JUDGMENTTAG-ORDER
Vaman Rao, J.@mdashHeard both sides.
This petition u/s 482, of Cr.P.C. seeks quashing the order dated 3-4-2000 of the I Additional Sessions Judge, West Godavari at Eluru passed in Crl. M.P. No. 715 of 2000 in SC No. 47 of 1997.
2. It appears that after the prosecution evidence was closed and the accused was examined u/s 313 of Cr.P.C, some witnesses were sought to be examined on behalf of the accused. One Dr. Ajambaar Sutar resident of Bubaneshwar is one such witness for whom summons were got issued on behalf of the investigation and necessary expenses were deposited in the court. The witness was summoned for giving evidence as well as for producing records from City Hospital, Cuttack.
3. It appears that in response to the summons, the witness sent a reply stating firstly that having retired from service, he no longer has any control over the record sought to be summoned and as to his attendance he has stated that he is suffering from Diabetes Mellitus, High Blood Pressure and Chronic Heart Disease and that he has been advised by treating physician. Dr. RSN Murthy, cardiologist not to undertake any travelling. It is further stated that he requires continuous medication. It is not known what orders have been passed by the learned Sessions Judge on this letter. However, it appears that the accused was directed to proceed with their further defence. It is under these circumstances, the petition in Crl. M.P. NO. 715 of 2000 was filed on behalf of the accused for appointment of a Commissioner for examining the said witness.
4. The impugned order discloses that the learned Sessions Judge dismissed this application mainly on the ground that under the directions of this Court passed in Crl. P. No. 3635 of 1999 dt. 28-7-1999, he is required to dispose of the within four months from 28-7-1999. Presumably, the learned Sessions Judge thought that if this application for appointment of the Commissioner is conceded, he would not be able to comply with the direction of this Court in regard to the disposal of the case.
5. The further ground on which the learned Sessions Judge chose to dismiss the petition for appointment of the Commissioner is that the Investigating Officer in his evidence stated that his investigation revealed that the petitioner accused No. 1 "was at Cuttack" and that this part of the evidence can be relied upon by the accused. It would appear that the witness in question was sought to be examined on Commission to prove the plea of alibi taken on behalf of the accused. This plea is obviously sought to be proved by the accused by the evidence of the said Doctor not only by the oral evidence of the said Doctor but with reference to the documentary evidence by way of hospital records.
6. The mere statement of the Investigating Officer that the petitioner accused was at Cuttack may not satisfy the requirement of the accused for which the said Doctor is sought to be examined on Commission.
7. The other ground which seems to have weighed with the learned Sessions Judge in rejecting the application is that there is a direction of this Court to dispose of the said SC within four months from 28-7-1999 and that inasmuch as it could not be disposed of within that period, extensions have been granted and further extension has been requested which was yet to be received. Presumably one of the grounds for dismissing the application by the learned Sessions Judge was that allowing the application would entail non-compliance with the order of the High Court for disposal of the case within certain period. It may be pointed out that the case could not be disposed of within the time fixed originally by this Court and further extensions were sought and have been granted. In fact, another request for extension is said to be pending with the High Court. There can be no doubt that the trial Court is bound to comply with a direction of this Court for disposal of the case by a particular date. But, such a direction cannot be a ground for rejecting an application or a relief on the ground that the grant of such an application would disable the Sessions Judge in complying with the directions of this Court for expeditious disposal.
8. In this case, the original direction to dispose of the case by a particular date could not be complied with and an extension was sought for. If the application for examination of witness on Commission was otherwise justified and was necessary to be allowed for ends of justice, it is wholly improper to reject such an application merely on the ground that allowing such an application would amount to non-compliance with the orders of this Court for expeditious disposal of the case. As seen above, inasmuch as extension of time was sought earlier, it is open to Sessions Judge to seek further extension of time on the ground of such application having been allowed. A direction for expeditious conclusion of trial in a criminal case by the High Court cannot be used as a justification or an excuse for denying fair trial to the accused which is the basic requirement of the criminal justice system. In this case, the accused sought appointment of a Commission for examining his defence witness. It is not the finding of the learned Sessions Judge that the evidence of the defence witness and the documents sought to be called for from the hospital are irrelevant or have no bearing on the defence taken by the accused. In fact, the learned Sessions Judge sought to justify the refusal of the application on the ground that some other evidence can be pressed into service as a substitute for the evidence sought to be brought on record by the accused. As stated above, the accused cannot be asked to be satisfied with some stray admission of the Investigating Officer as a substitute for proof of the plea of alibi taken by him.
9. Under the circumstances, to give fair opportunity to the accused to defend himself in the trial and to secure ends of justice, the order passed by the learned Sessions Judge deserves to be quashed and is accordingly quashed. The petition for appointment of Commissioner shall be deemed to have been allowed and the learned Sessions Judge shall accordingly appoint a Commissioner for examining the witness sought to be examined on behalf of the accused on Commission on such terms and conditions as the learned Sessions Judge may consider proper.
