Right Of Accused To Adduce All Evidence Is Part Of Fair Procedure, Refusal To Summon Defence Witnesses Should Be Exercised Sparingly: Kerala HC

Justice Bechu Kurian Thomas held that the right of the accused to enter defence evidence and adduce witnesses is essential to ensure fair procedure under Article 21 of the Constitution of India.

“Further, during the course of a criminal trial, it is not for the court to decide the credit that can be attached to the evidence that a defence witness may bring in. Similarly, the court cannot also foresee the nature of evidence, the defence intends to adduce through a particular witness. The right of the defence to adduce all its evidence is part of the fair procedure contemplated under Article 21 of the Constitution of India. Hence the refusal to issue summons to witnesses named in the list of defence witnesses submitted by the accused should be an exception, to be resorted to very sparingly”,” stated the Court.

The petitioner is the first accused in an NDPS case. During the trial, the prosecution examined 77 of the 155 witnesses and later the defence was called upon to adduce evidence. The defence listed five witnesses, out of which a summons was only issued to three witnesses. The Sessions Judge dismissed the application to issue summons to two witnesses. Aggrieved by this, the petitioner has approached the High Court.

The Counsel for the petitioner submitted that the petitioner was denied the right to a fair trial by not issuing summons to all defence witnesses. It was contended that the order of the Sessions Judge that defence witnesses were adduced to drag proceedings and delay the trial was without any basis.

The Court noted that summons was issued to three witnesses and they were examined thoroughly and only subsequently Trial Court declined to issue summons to the two witnesses.

Section 233 of the CrPC deals with adducing defence evidence. It stated that calling the accused to enter defence and adduce evidence is an integral part of criminal trial. The Court said, “The purpose of providing such an opportunity to the accused cannot be defeated nor can it be lost sight of by the trial judges. A complete and effective compliance of Section 233(1) Cr.P.C. ought to be ensured in every criminal trial.”

The Court further stated that the Trial Court should not pick and choose witnesses to issue summons. It stated that the Trial Court has the power to refuse issuance of summons to witnesses after giving reasons recorded in writing.

The Court stated held that the Trial Court cannot foresee the nature of evidence that would be adduced by a defence witness during criminal trial. It added thus:

“Normally, it is not proper for a trial court to conclude during the middle of a trial, that some witnesses would not advance the case of the accused and are not necessary to be examined, while others would. As the defence is entitled to take up inconsistent defences during a trial, the court would be generally handicapped to fully envisage the different contentions that could be raised by the accused. Since the defence is entitled to adduce all its evidence under law, it is not proper for the trial court to restrict the witnesses mentioned in the list of defence witnesses, in the absence of any sufficient material available

In the facts of the case, the Court observed that the order of the Trial Court stating that adducing defence witnesses would drag proceedings indefinitely was without any basis and erroneous. It stated that the Trial Court could fix the day for the examination of witnesses to ensure that Trial proceedings were dragged or delayed.

As such, the Court set aside the order of the Sessions Judge refusing to issue the summons. It also directed the Trial Court to issue summons to the remaining two witnesses to adduce defence evidence.

Counsel for Petitioner: Advocates V John Sebastian Ralph, Vishnu Chandran, Ralph Reti John, Appu Babu, Giridhar Krishna Kumar, Geethu T.A., Apoorva Ramkumar, Mary Greeshma

Counsel for Respondents: Public Prosecutor Sreeja V

Citation: 2024 LiveLaw (Ker) 371

Case Title: Muhammed Sahir v State of Kerala

Case Number: CRL.MC NO. 4909 OF 2024

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