Important points:
The trial court will then decide whether it is essential for a just decision of the case to examine more witnesses on the defence side. If the Court is so satisfied, the Special Judge can permit the appellant to examine such additional witnesses the examination of whom he considers essential for a just decision of the case or he can exercise the powers envisaged in Section 311 of the Code in respect of such witnesses

ORDER :

Petitioners are accused 1 to 3 in S.C.No.330 of 2019 on the files of the Additional Sessions Judge-VII, Thiruvananthapuram. The prosecution allegation is of the petitioners were found to be in illegal possession of 6.36 kg of Hashish oil and currency worth Rs.6,72,500/-and thereby having committed the offences punishable under Sections 20(b)(ii)C and Section 29 of the NDPS Act. The trial of the case has commenced and the prosecution evidence is complete. The accused were questioned under Section 313(1)(b) Cr.P.C. Thereafter, the case was posted for defence evidence. At that juncture, Counsel for the petitioners filed Annexures A2 and A3 witness lists and sought issuance of summons to those witnesses. The Public Prosecutor filed objections stating that the attempt was to protract the proceedings and to cause annoyance to the witnesses. By Annexure A5 order, the court below allowed the applications in part. The prayer to issue summons to the sole witness in Annexure A2 and witness Nos.5, 7 and 8 in Annexure A3 was rejected. The prayer in this Crl.M.C is to quash Annexure A5 to the extent the order rejects the prayer for issuance of process to the only witness in Annexure A2 and three of the witnesses in Annexure A3.

2. A perusal of the impugned order shows that the learned Sessions Judge found that the sole witness in Annexure A2 of being the wife of PW4, an independent witness, her testimony is not necessary to prove the defence plea. That, the attempt of the accused is not bona fide and the witness is cited for the purpose of causing annoyance to PW4. As far as witness Nos.5, 7 and 8 in Annexure A3 are concerned, it was found that the accused can get the CCTV footages sought to be produced through witness No.5, by summoning the person in charge of the establishment where the alleged video recording had taken place. The court also found that witness Nos.7 and 8 are unnecessary to prove the defence plea and their examination would only result in procrastination.

3. Heard Sri.J.R.Prem Navaz for the petitioners and Sri.C.K.Suresh for the respondents.

4. Learned counsel for the petitioners assailed Annexure A5 order on the ground that the order defeats the right of the accused to adduce evidence. It was contended that under Section 233(3) Cr.P.C it is obligatory for the Court to issue process to any witness cited by the accused, unless the court is satisfied that the application for issuance of process is filed for the purpose of vexation or delay or for defeating the ends of justice. In support of this contention, reliance was placed on the decision in Ronald v. State of West Bengal [AIR 1954 SC 455]. It is submitted that the Judge cannot refuse to issue process to a defence witness on the premise that examination of such witness would cause annoyance to a prosecution witness. According to the learned counsel, no reason is stated for the refusal to issue process to witness Nos.7 and 8 in Annexure A3 and the reason stated for not summoning witnessNo.5 is unsustainable.

5. The learned Senior Public Prosecutor countered the submissions and submitted that adequate reasons are stated in the impugned order and that courts have to consider the gravity of the offences alleged against the accused and the purpose behind examining a particular witness. The attempt of the accused being only to protract the proceedings by summoning witnesses having no connection with the alleged incident or the investigation, the learned Sessions Judge was justified in issuing Annexure A3 order. Reliance is placed 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].

6. For answering the issue involved, it is necessary to have a look at Section 233(3) Cr.P.C, which reads as under;

“233. Entering upon defence.

(1) Where the accused is not acquitted under section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof.

(2) If the accused