Leave granted.
2. We have heard learned counsel for the
appellant and the learned counsel for the State of
Madhya Pradesh. The appellant is an accused in S.T.
No.461 of 2010 pending on the file of Additional
Sessions Judge, Indore. He is facing charges under Sections 294 &JUDGMENT307 read with Section 34 of the
Indian Penal Code. The appellant's case is that on
the date of incident he was not in Indore. According
to him, he was in Nimach District. He has pleaded
alibi. In support of his plea the appellant wanted
to examine nine witnesses from Nimach. He,
therefore, moved an application for summoning those
witnesses. It appears from the order dated
11.10.2013 passed by the High Court that the High
Court directed the Trial Court to issue notices to
the concerned witnesses for their appearance before
the Court within a period of one month from the date
of the order i.e. 11.10.2013. The case of the
appellant is that from 12.10.2013 to 17.10.2013 the
Courts were closed because of public holidays. The
appellant obtained the certified copy of the order
dated 11.10.2013 on 18.10.2013 and moved the Trial
Court on 30.10.2013. The Trial Court issued summons
to the nine witnesses on 30.10.2013 for their
appearance before it on 11.11.2013. It appears that
on 11.11.2013 out of nine witnesses, three witnesses
appeared and they were examined by the Trial Court.
For summoning the remaining six witnesses an application was made by the appellant on 12.11.2013 before the learned Sessions Judge which was rejected
on the same date on the ground that the High Court
by its order 11.10.2013 had given the appellant one
month's time. However, the appellant had not taken
the required steps within that period. The Trial
Court observed that in such circumstances, it is not
necessary to grant one more opportunity to the
appellant to lead defence evidence. Being aggrieved
by the said order the appellant filed criminal
revision in the High Court. The High Court by the
impugned order refused to interfere with the order
dated 12.11.2013 passed by the Trial Court. Hence
this appeal by special leave.
3. We are informed that the Trial Court has
almost completed the examination of the witnesses
and the matter is posted for judgment. It is true
that there is some negligence on the part of the
appellant. If the appellant had obtained the
certified copy of the order dated 11.10.2013 on
18.10.2013, nothing prevented him from moving the
Trial Court at the earliest. He chose to wait and
moved an application on 30.10.2013. It is this delay on his part that persuaded the High Court to reject his application. We share the anxiety of the High
Court. However, we cannot lose sight of the fact
that the appellant has pleaded the defence of alibi
and wanted to examine some more witnesses in support
thereof. In the circumstances, in our opinion, in
the interest of justice the appellant needs to be
given a last opportunity to examine his defence
witnesses which, of course, will be subject to
payment of cost of Rs.5000/-. Hence, the impugned
order is set aside and the appeal is allowed. The
appellant shall move an application before the Trial
Court within one week from today for summoning the
rest of the witnesses. On such an application being
filed by the appellant, the Trial Court shall issue
summons to the said six witnesses and the same shall
be served upon them immediately. Examination of
these six witnesses shall be completed within a
period of one month from the date of service of
summons on the witnesses. This entire exercise,
however, will be subject to the appellant depositing
a sum of Rs.5000/- in the High Court of Madhya
Pradesh, Indore Bench which shall be credited to the
account of State Legal Services Authority. The appeal is disposed of accordingly.
(J. CHELAMESWAR) New Delhi; December 11, 2013.