Trial Judges Do Not Have Absolute Discretion To Prune Or Reject List Of Witnesses Submitted By Accused: Kerala High Court

The trial Judges do not have absolute discretion to prune or reject the list of witnesses submitted by the accused, the Kerala High Court observed in a judgment delivered on Monday.

Justice VG Arun observed that the trial court is empowered to interfere with only when the court is convinced that the application seeking issuance of summons is submitted for the purpose of vexation or delay or for defeating the ends of justice.

The court also observed that the possibility of annoyance to the witness sought to be examined, or to prosecution witness already examined, is not a ground for refusing to summon that witness.

In this case, the accused filed witness lists and sought issuance of summons to those witnesses. This was objected to by the prosecution stating that the attempt was to protract the proceedings and to cause annoyance to the witnesses. The Trial Court rejected the prayer for issuance of process to the only witness in Annexure A2 and three of the witnesses in Annexure A3. Regarding the sole witness listed in Annexure A2, the Court observed that the said witness being the wife of PW4, an independent witness, her testimony is not necessary to prove the defence plea. The Court also observed that the attempt of the accused is not bona fide and the witness is cited for the purpose of causing annoyance to PW4. Regarding Annexure 3 list, the court observed that they are unnecessary to prove the defence plea and their examination would only result in procrastination.

The High Court, referring to Section 233(3) Cr.P.C, observed thus:

A careful reading of the Section shows that the court is bound to issue process for compelling the attendance of witnesses, unless the court is of the opinion that the application for summoning the witnesses ought to be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. The adversarial system confer the accused with the indefeasible right to cross examine the prosecution witnesses and to let in defence evidence. This indefeasible right cannot be denied lightly. The right to fair trial includes fair and proper opportunities allowed by law to prove the innocence of the accused. Adducing evidence in support of the defence is such an opportunity. Denial of that opportunity means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed.

The prosecution placed reliance on the decisions in Arivazhagan v. State [2000 KHC 537/ (2000)3 SCC 328] and Santhosh Kumar v. State of Kerala [2016(5) KHC 709] to contend that the Trial Court has power to determine whether the application for examination of witnesses filed should be accepted or not. The court, in this context, observed:

"The decisions in Arivazhagan or Santhosh Kumar cannot be understood to have held that the trial Judges have absolute discretion to prune or reject the list of witnesses submitted by the accused. 14. Going by the plain meaning of the words in Section 233(3) and the settled legal position, the trial court is empowered to interfere with only when the court is convinced that the application seeking issuance of summons is submitted for the purpose of vexation or delay or for defeating the ends of justice. In my considered opinion, the petitioner cannot be attributed with any such intention in having filed Annexures A2 and A3 and hence the interference with the list as per Annexure A5 order cannot be sustained."

CASE: ANTONY ROSARIO FERNANDO vs. STATE OF KERALA [Crl.MC.No.19 OF 2021] 

CORAM: JUSTICE VG ARUN

COUNSEL: ADV J.R.PREM NAVAZ, ADV.C.K.SURESH

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