Defence Evidence: Application U/S 243CrPC Cannot Be Rejected Unless It Is Vexatious, Delayed or Would Defeat The Ends of Justice:Delhi HC

The instant petition was filed by the accused, the Secretary-General of (Bhartiya Aadim Jaati Sewak Sangh) BAJSS who was alleged of misuse of Government grants by office bearers of BAJSS. During the recording of prosecution evidence, an application was filed by the petitioner under Section 91 read with Section 311 of the Cr. P.C seeking production of certain documents inter alia resolutions of the Executive Committee of (BAJSS). The application remained pending and was dismissed, when the petitioner sought leave to withdraw the application with liberty to summon the required documents during the defence evidence. After the prosecution evidence had concluded, subject application was filed by the accused under such provisions seeking not only the production of the documents which had been mentioned therein but also for summoning the witnesses to prove said documents.

This application was dismissed by the Trial Court on the ground that particulars of the documents sought were not provided. The Trial Court also observed that since no cross-examination of the witnesses sought, had taken place during the prosecution stage in the court with regards to such documents, further summoning them would only delay the proceedings especially when such application had been filed at a belated stage. Moreover the name of the persons in whose possession the documents were supposed to be situated had not been mentioned and no attempts were made to obtain copies of such documents under Right to Information Act, 2005.

Justice Sanjeev Sachdeva observed that Section 91 of the Cr. P.C empowered a Court to direct production of any document necessary for the purposes of any investigation and inquiry or trial while Section 311 facilitated the Court to summon any person as a witness or examine any person in attendance at any stage of the Trial though not summoned as a witness or recall or re-examine any person already examined if his evidence appears to be essential to the just decision of the case.

The High Court observing that the documents sought for, being relevant for the just decision of the case had already been applied for earlier. Since the Trial Court then had permitted liberty to the petitioner to summon the relevant record and witnesses at the stage of defence, the subject application filed later could not have been rejected on grounds of delay or having being moved at a the belated stage. Further, the High Court also observed that the reasoning of Trial Court that specific particulars or dates of the meetings have not been given was ex-facie unsubstantiated as requisite particulars were indeed given.

With regards to summoning of witnesses or documents under Section 243 Cr. P.C the Court held that,

"Under Section 243 Cr.P.C. it is obligatory on the part of the Trial Court to issue process when the accused seeks summoning of any witness or production of any document in his defence. The only ground on which such an application can be refused is if the same was vexatious, delayed or would defeat the ends of justice."

Disputing the Trial Court's stance that allowing applications under section 243 was discretionary, the Court observed that the same was obligatory unless for reasons to be recorded, that application was vexatious, delayed or defeated the ends of justice.

In the instant case, the High Court noted that such findings had not been returned by the Trial Court. The High Court also disputed the contention of the Trial Court regarding obtaining copies under Right to Information Act, holding that copies obtained under it would not become primary evidence in terms of Evidence Act and a party would still need to summon the original record from the custodian.

In view of the above, the order by the Trial Court was set aside and the application was allowed by the High Court. Thus the plea was dismissed.

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