#prosecutionwitness

[seemabhatnagar]

Fair Trial

Anupam Singh v. State of UP through Principal Secretary Home and Another

Criminal Revision No.794/2018

Before Allahabad High Court

The Criminal Revision was disposed of on 17.01.2024 by Hon’ble Madam Justice Jyotsna Sharma J. Criminal Revision was allowed and order of the Trial Court rejecting the application moved on behalf of the accused for summoning defense witnesses was allowed and Trial Court was directed to issue summons for production of the defense witnesses.

Background

This revision has been filed against the order passed by the Additional District and Sessions Judge, F.T.C.-II, Ambedkar Nagar on 03.08.2018 in Session Trial State vs. Anupam Singh arising out of case  under section 302 IPC, whereby the permission to examine 5 defense witnesses, was refused.

Fact

The revisionist accused – Anupam Singh is facing trial under section 302 IPC.

During the trial on behalf of the accused an application was moved on 02.06.2018 with the prayer that the inquest was done in presence of 5 public witnesses and they have been named as prosecution witnesses.

The aforesaid 5 prosecution witnesses have not been produced by the prosecution, therefore at least one of them may be summoned and examined as court witness.

The aforesaid application was rejected by the trial court on 27.06.2018.

After recording of all the statements under section 313 Cr. P.C. the accused moved another application with a request that the witnesses namely, Surendra Pratap Singh, Balram Nishad, Ramdhari Yadav, Ram Siromani Upadhyaya and Ram Suresh Nishad may be summoned as defense witnesses.

Contention of the prosecution before Trial Court

This application to produce them as defense witness was objected to by the prosecution, submitting that all of them were in fact witness of the inquest report and that they have switched side and have come in collusion with defense and further that the previous application moved by the defence for summoning them, has already been rejected, therefore this application may not be allowed.

The learned trial court heard both the sides and rejected this application by order dated 03.08.2018.

Contention of the Defense in Criminal Revision

Order dated 03.08.2018 is challenged by the defense.

The first application was moved under section 311* Cr.P.C.

The second application was moved for the production of the same witnesses but it was made under section 233* Cr.P.C.

There cannot be comparison between the two and that the accused has indefeasible right to produce witness in his defense.

If the summons is not issued to call those persons as defense witnesses, the accused shall be highly prejudiced in his defense and his valuable right as regard fair trial shall stand defeated.

Though they had applied for summoning all the 5 witnesses but it will suffice if any 2 of them are summoned for examination as defense witnesses.

311*Cr P C

In 311 Cr P C right to summon any person belongs to the Court.

The court has a plenary power to summon any person at any stage of the proceedings as a witness.

This power includes recall and re-examination of any person who has already been examined

This power is to be exercised when the court finds it necessary to summon/recall any witness for just decision of the case.

The law puts no fetters on the powers of the courts to call for any witness to attain the highest goal of justice.

233*Cr P C

In 233 Cr P C right to produce its witness lies with the defense.

This provision is essential part of Session Trial.

This provision is applicable when the prosecution evidence is complete and the accused is given an opportunity to produce the evidence in its defense.

Undoubtedly this right has been given to the defense to produce its witnesses as part of fair trial and as part of legal principle of hearing both the sides.

233(3) Cr PC

 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.

Observation of the High Court

The witnesses who were sought to be summoned by the defense under section 233(3) Cr. P.C. were not examined as prosecution witnesses, at any stage.

Though they were witnesses of inquest but never produced by the prosecution.

Supreme court on Fair Trial –

In re

Kalyani Baskar v. M S Sampoornam

Fair and proper opportunities is allowed by law to prove his/her innocence.

Adducing evidence in support of the defense is a valuable right.

Denial of that right means denial of fair trial.

It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and the courts should be jealous in seeing that there is no breach of them.

The observation of the trial court that summoning the witnesses will tantamount to review is misconceived.

The trial court failed to apply the law in right perspective and ignored the difference in scope and implications in which the provisions of section 311 Cr.P.C. and section 233(3) Cr.P.C. are meant to be applied.

The order of the trial court suffers from legal flaw and is not sustainable.

In view of the submissions of the revisionist, revisionists is given liberty to point out to the court concerned which of the 2 witnesses (out of total 5 witnesses), he seeks to produce in this defense.

Seema Bhatnagar