S.243 CrPC | Trial Court Bound To Issue Process To Witness Proposed By Accused Unless It Is Attempt To Defeat Ends Of Justice: Kerala High Court

The Kerala High Court recently set aside the order of a Trial Court that rejected the prayer for summoning a witness cited by the accused, where there was nothing to indicate that the accused had attempted to defeat the ends of justice through seeking the examination of such proposed witness. 

"Unless it is established that the application to summon a witness is made for vexation or delay or for defeating the ends of justice, the trial Court has no discretion in the issuance of process to compel the attendance of any witness cited by the accused. The trial Court is bound to issue process to the witness proposed by the accused in a case where there is nothing to show that the attempt of the accused is to defeat the ends of justice", the Single Judge Bench of Justice K.Babu observed while setting aside the impugned order of the Judicial First Class Magistrate Court, Kalamassery. 

The petitioners in the present case, who are charged with offences under Sections 498 A and 324, read with Section 34 of IPC, had applied to summon the Assistant Commissioner of Police, Ernakulam, to be examined as defence witness, after the closure of the prosecution evidence and the examination of the petitioners/accused under Section 313 Cr.P.C.

It is the case of the petitioners that they had proposed the examination of the Assistant Commissioner of Police in order to establish that the investigation made by the Police was biased, and also to establish custodial torture of the first petitioner at the instance of the defacto complainant (PW1) by the Police. This was however, rejected by the Trial Court on the ground that the same would protract the trial, and was unwarranted. 

Advocates Prasun S. and N.A. Retheesh submitted on behalf of the petitioners that the investigation made by the Police, which led to the submission of the final report, was biased, which could be established only by examining the Assistant Commissioner of Police, Ernakulam. It was argued that the petitioners could not be held liable for the prolonged pendency of the matter, and that the same alone could not be a ground to deny the opportunity of the petitioners to lead evidence to rebut the prosecution evidence. 

The Court in this case perused Section 243(2) Cr.P.C. which stipulates the right of the accused to lead evidence to rebut the case of the prosecution.

"The Court cannot deny fair and proper opportunities to the accused to prove his innocence. This is a valuable right. If this right is denied, there is no Fair Trial. Denial of that right is the denial of the Fair Trial, which elaborates the fundamental right guaranteed under Article 21 of the Constitution", it observed. 

The Court added that in Kalyani Baskar v. M.S. Sampooram (2007), the Apex Court had observed that a Fair Trial includes fair and proper opportunities allowed by law to prove the innocence of the accused and that adducing evidence in support of the defence was a valuable right, the denial of which resulted in denial of fair trial. 

The Court therefore questioned whether the trial Court could decide the nature of evidence to be adduced in defence. 

"The accused is the person who is aware of the nature of evidence to be adduced to rebut the prosecution evidence. The Court cannot exercise discretion in the choice of witnesses and the quality of defence evidence", it observed. 

The Court added that the delay in the proceedings also could not be cited as a reason for the Trial Court to reject the prayer for summoning the witness cited by the accused. 

"The fact that a matter has been pending for a long time cannot affect the valuable right of the accused to rebut the prosecution evidence", the Court observed. 

The Court went on to note that no materials had been placed before it either to infer that the petitioner/accused attempted to defeat the ends of justice. 

"The learned Magistrate lost sight of these salutatory principles while rejecting the prayer for leading defence evidence", the Court observed while quashing the order. 

It thereby directed the Trial Court to issue summons to the witness cited by the defence.

Public Prosecutor G. Sudheer appeared on behalf of the respondent. 

Case Title: Anilkumar & Anr. v. State of Kerala 

Citation: 2023 LiveLaw (Ker) 91

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