Kerala High Court Elucidates Mode In Which Accused Must Request Court For Adducing Defence Evidence

The Kerala High Court recently addressed the question as to the mode in which an accused ought to request the Court for adducing the defence evidence. 

Justice Bechu Kurian Thomas, perused Section 233 Cr.P.C. which stipulates 'Entering Upon Defense', and observed that as per the provision, if the accused applies for the issue of any process for compelling the presence 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. It thus noted that the action of making a prayer or a request is the meaning to be ascribed to the word ‘applies’ as provided in Section 233 Cr.P.C. 

The Court also perused Rule 27 of the Criminal Rules of Practise, Kerala, 1982, which provides for the 'presentation and form of proceedings, petitions, documents and docketing', and went on to observe, 

"From a reading of the above provision it can be understood that every petition or application must be in writing though no particular format is prescribed. Thus it can be concluded that in the context of the procedure in criminal courts, an application has to be in writing. However, no prescribed form is provided. In the absence of any prescribed format, the parties are free to choose any form. All that is required in the petition or application is a request or a prayer. If the said requirement is satisfied, irrespective of the nomenclature used as the title of the application, whether as a petition or as an application or as a memo, the court is bound to permit such evidence to be adduced, unless, of course, it is of the view that the application is made for the purpose of vexation or delay or for defeating the ends of justice". 

The petitioner in this case, who is accused of offences punishable under Sections 452, 341, 323, 506(1) and 308 of IPC, was called upon to enter his defence before the Sessions Court, after the prosecution evidence was concluded. Four documents were thereby produced by the petitioner, along with a list of witnesses, terming it as 'memo'. The memo mentioned the details of the witnesses as (i)Station House Officer, Kannur City Police Station, and (ii) Deputy Superintendent of District Hospital, Kannur.

The memo also stated that the first witness would be required to produce the records in Crime No. 1210/2015 of Kannur City Police Station and to give evidence while the second witness was cited to produce the accident cum wound certificate of two persons mentioned therein and to give evidence. It was also mentioned that the witnesses were required to be summoned and examined to prove the case of the accused. The Sessions Judge however rejected the request of the petitioner on the technical ground that an application under Section 233(3) Cr.P.C. had not been filed and a memo without filing any application would have to be dismissed. 

The counsels for the petitioner submitted that the Cr.P.C. did not specify any specific form or mode in which an application is to be filed and that even an oral application itself would suffice the request to issue summons to the defence witnesses. It was thus argued that the memo submitted by the petitioner ought to have been treated as an application. The counsels added that despite the same, the petitioner was willing to file a written application under Section 233(3) Cr.P.C. seeking to adduce defence evidence and for compelling attendance of the witnesses specified in the witness list.

The Court at the outset declared that an opportunity for adducing defence evidence is a part of the right to a fair trial. After perusing Sections 233(1) and 233(3) in this regard, the Court was of the opinion that if the petition or application satisfied the requirement of a prayer or a request, irrespective of the nomenclature used as the title of the application, whether as a petition or as an application or as a memo, the Court would be bound to accept the evidence that has been adduced. 

Taking note of the factual circumstances of the case, the Court observed that there was no proper application or petition as per the rules of practice prevalent in Kerala in this case. The Court noted that the witness list only mentioned the list of witnesses and the purpose of their examination, but without any request or prayer to summon them. 

"Without a request, the memo filed on behalf of the accused cannot be treated as an application. Therefore the learned Sessions Judge was justified in dismissing the memo," the Court found. 

However, the Court was quick to add that the accused could not be denied the opportunity for adducing evidence based on technicalities, and declared that such an opportunity ought to be granted afresh for filing a proper application to adduce the defence evidence. The counsels for the petitioner conceded that an application under Section 233(3) Cr.P.C. in writing would be filed.

"Accordingly, while upholding the impugned order, it is directed that if an application in writing under Section 233(3) of the Cr.P.C. is filed by the petitioner without unnecessary delay, necessarily the learned Sessions Judge shall initiate appropriate steps to summon the witnesses and complete the trial, without further delay," the Court held while disposing the case. 

The petitioner was represented by Advocates M.K. Sumod, Abdul Raoof Pallipath, K.R. Avinash, Vidya M.K., Raj Carolin V., and Thushara K. 

Case Title: Muhammed Rafi Kunnulpurayil v. Sub Inspector of Police & Anr. 

Citation: 2023 LiveLaw (Ker) 250 

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