Neutral Citation No. - 2025:AHC:110682 Court No. - 71 Case :- APPLICATION U/S 528 BNSS No. - 22333 of 2025 Applicant :- Gaurav Tyagi Alias Aviral Tyagi Opposite Party :- State of U.P. and Another Counsel for Applicant :- Vinod Singh Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J. 1. Heard learned counsel for the applicant and learned A.G.A. for the State. 2. This application u/s 528 Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as 'BNSS') has been preferred against order dated 06.06.2025, passed by Additional Civil Judge (J.D.) / Judicial Magistrate, Court No.1, Ghaziabad, in Case No. 1739 of 2023 (State Vs. Gaurav Tyagi), arising out of Case Crime No.86 of 2018, under Sections 379, 411 IPC, P.S.- Linkroad, District- Ghaziabad, pending in the court of Additional Civil Judge (J.D.) / Judicial Magistrate, Court No.1, Ghaziabad, whereby the application filed by applicant-accused for summoning of one Sunni Tyagi, Ankit & Rajeev @ Amit in defence evidence has been rejected. 3. It has been submitted by learned counsel for the applicant that impugned order is against facts and law and thus, liable to be set aside. The case is at the stage of defence evidence and that in view of facts of the matter, the aforesaid persons are relevant witness and thus they must have been summoned as defence witnesses. The application of applicant has been rejected by the trial Court in an arbitrary manner. It was submitted that applicant must be provided a proper opportunity to lead defence evidence. Learned counsel referred case of Mrs. Kalyani Baskar Vs. Mrs. M.S. Sampornam 2007 50 AIC 381 and submitted that impugned order is liable to be quashed. 4. Learned AGA has opposed the application and submitted that there is no illegality or perversity in the impugned order. 5. I have considered the rival submissions and perused the record. 6. Perusal of record shows that applicant is facing trial in the aforesaid case. After recording his statement under Section 313 Cr.P.C. case was fixed for defence evidence. It appears that applicant has moved an application under Section 243 Cr.P.C. for summoning of certain persons, namely, Sunni Tyagi, Ankit & Rajeev @ Amit as defence witnesses. That application of applicant was rejected by the trial Court mainly on the ground that applicant has already been provided sufficient opportunity for defence evidence. However, it appears that case is still at the stage of defence evidence. Even after rejecting the application of applicant, the case was again fixed for defence evidence. Thus, when the case is fixed for defence evidence and accused prefers an application for summoning of certain persons as defence witnesses, normally such application must be allowed unless it is shown that such application was made for the purpose of vexation or delay or for defeating ends of justice. In the instant matter, the applicant has mentioned in his application that said persons are relevant witnesses. Right to lead defence evidence is an important right of accused. In view of attending facts, the applicant must have been granted one effective opportunity to examine said witness in his defence. Considering facts of the matter, it appears that impugned order is against law and thus liable to be set aside. 7. In view of aforesaid, the impugned order dated 06.06.2025, passed by Additional Civil Judge (J.D.) / Judicial Magistrate, Court No.1, Ghaziabad is set aside. Learned trial Court shall pass an order on application of applicant afresh in accordance with law. 8. The application u/s 528 BNSS is disposed of in above terms. Order Date :- 10.7.2025 'SP'/- Digitally signed by :- SANDEEP PAL High Court of Judicature at Allahabad