S.233(3) CrPC | Prosecution Witness Cross-Examined By Accused Cannot Be Compelled To Appear As Defence Witness: Kerala HC

The Kerala High Court on Friday reiterated that a prosecution witness who was examined in chief, cross-examined and re-examined, cannot be compelled to appear before the Court as Defence Witness under Section 233(3) CrPC. 

Section 233(3) CrPC provides that if the accused applies for the issue of any process for compelling the attendance 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.

Justice A. Badharudeen relying on the law laid down by the Apex Court in State of Madhya Pradesh v. Badri Yadav observed that:

Thus the law is very clear on the point that the provisions of the sub-section 3 of Section 233 CrPC could not be understood as one compelling the attendance of any prosecution witness, who was examined in chief already, cross-examined and reexamined, to be examined as a defence witness. 

The petition was moved by an accused in a case registered under Section 138 of the Negotiable Instruments Act, seeking to summon and examine Secretary, Kottur Service Co-operative Bank (who had appeared as prosecution witness) as a defence witness in the Special Magistrate Court. The Magistrate as well as Sessions Court had previously dismissed the petition. 

The Counsel appearing for the petitioner submitted that during examination in chief, details regarding only one cheque were asked from the Secretary and during cross examination, he stated that the true nature of transaction could be explained by producing the other cheque also. Accordingly, a recall application was moved, which was dismissed. Thus the Petitioner sought to examine the Secretary as a defence witness.

The High Court held that under Section 233 CrPC, the accused can apply for issue of any process for compelling the attendance of any witness in his defence. The power to summon any person as a witness or recall and reexamine any person already examined is the discretionary power of the Court in case such evidence appears to it to be essential for a just decision of the case. However, the provisions cannot be understood as compelling the attendance of any prosecution witness examined, cross-examined and discharged to be juxtaposed as a Defence Witness.

Thereby, the Court rejected the petition. 

Advocates M.B. Shyni, V. R. Anilkumar, Rajesh Kumar R, Ramesh P.K., Erfana Parambadan and Sarafudheen T appeared for the Petitioner. 

Public Prosecutor Advocate G. Sudheer appeared for the Respondents. 

Case Title: Sujith A. V. v. State of Kerala and Anr. 

Citation: 2022 LiveLaw (Ker) 613

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