C.G. Suri, J.
1. This revision petition has been filed against an order of the Additional Sessions Judge, Sangrur declining to summon some defence witnesses on the application of the petitioner. The ground given was that the applicant was not entitled as of right to have the witnesses summoned through Court under Section 291, of the Code of Criminal Procedure (1898).
2. Five persons including the petitioner had been committed to the Court of Session for trial under Sections 307, 365. 148 and 149, Indian Penal Code. When the Committing Magistrate had read over and explained the charges the accused had stated that they would furnish the list of defence witnesses in the Court of Session. They had applied for summoning of defence witnesses more than 10 days before the date fixed for the commencement of the trial. The petitioner had pleaded alibi and it was his case that at the time of the occurrence he was an indoor patient in a hospital situated at a far off station. He wanted his bed head ticket to be summoned from the hospital. He also wanted the doctor who had been treating him to be summoned. The doctor had in the meanwhile been transferred to a station still further away. It was not possible for the petitioner to produce these hospital records and the Government employees without Court's help and the liberty granted to the petitioner to produce these records and witnesses on his own responsibility was in fact a denial of the opportunity prayed for.
3. Shri Goswamy the learned Counsel for the petitioner, has cited before me Hote v. Emperor 37 Cri LJ 198 : AIR 1935 Sind 216 Rajaram Kesho-prasad v. State of M.P. 1962 (2) Cri LJ 688 (Madh Pra) and Ramsewak Sahu v. Emperor AIR 1933 Pat 559, in this connection, It has been laid down in these rulings that the Sessions Judge was bound to exercise his discretion in accordance with certain well recognised principles and not in a capricious manner. Where the accused had not availed himself of the opportunity under Section 211 of the Code, the Sessions Judge is not justified in refusing to exercise his discretion to summon defence witnesses merely on that ground. Where the application for summoning the witnesses is made well within time and their evidence is material to the defence the prayer for summoning of defence witnesses should not be declined.
4. Shri Bhatia, who appears for the State, has cited before me Nazir Singh v. King Emperor AIR 1925 Lah 557, in this connection. In that case the accused had failed to file a list of defence witnesses for many days after the date originally fixed for the commencement of the Sessions trial. In spite of the delay the Sessions ' Judge had issued summons to the defence witnesses and many of them had been examined. It was only when a defence witness was found to be untraceable that the request for issue of further summons was declined.
5. I accept the revision petition and quash the impugned order of the learned Sessions Judge. The defence witnesses and the hospital records mentioned in 'the petitioner's application, dated 2nd June. 1971 should be summoned and the petitioner should be given a reasonable opportunity of adducing his defence evidence during the Sessions trial.