Point of Law: Rule 27 of the Criminal Rules of Practise, Kerala, 1982, is extracted as Presentation and form of proceedings, petitions, documents and docketing, etc.

ORDER :

The mode in which an accused must request the Court for adducing the defence evidence arises for determination. Petitioner’s request for examining defence witnesses filed in the form of a memo was rejected on the ground that an application as contemplated under section 233(3) of the Code of Criminal Procedure, 1973 had not been filed. Petitioner challenges the said dismissal contending that a memo is sufficient compliance with the legal requirement.

2. Petitioner is the accused in S.C.No.637/2016 on the files of the Assistant Sessions Court, Kannur. The proceeding in the sessions court is initiated alleging offences punishable under Sections 452, 341, 323, 506(1) and 308 of the Indian Penal Code, 1860.

3. After conclusion of the prosecution evidence, the accused was called upon to enter his defence. Four documents were produced by the petitioner, along with a list of witnesses styling it as a 'memo'. The memo mentioned the details of the witnesses as (i)Station House Officer, Kannur City Police Station, and (ii) Deputy Superintendent of District Hospital, Kannur. The memo also mentioned that the first witness is required to produce the records in Crime No. 1210/2015 of Kannur City Police Station and to give evidence while the second witness was cited to produce the accident cum wound certificate of two persons mentioned therein and to give evidence. It was also mentioned that the witnesses were required to be summoned and examined to prove the case of the accused.

4. The learned Sessions Judge, by the impugned order, rejected the request of the petitioner on the technical ground that an application under Section 233(3) Cr.P.C. had not been filed and a memo without filing any application is liable to be dismissed.

5. Sri. M. K Sumod, the learned counsel for the petitioner, submitted that the Code of Criminal Procedure, 1973 do not specify any specific form or mode in which an application is to be filed and that even an oral application itself would suffice the request to issue summons to the defence witnesses. It was also submitted that when viewed in the light of the right of the accused to adduce defence evidence as stipulated in Section 233(3) Cr.P.C.; the memo filed by the petitioner ought to have been treated as an application. Despite the above, the learned Counsel submitted that petitioner is willing to file a written application itself under Section 233(3) Cr.P.C. seeking to adduce defence evidence and for compelling attendance of the witnesses specified in the witness list.

6. Sri. Vipin Narayan the learned Public Prosecutor submitted in all fairness that no specific form has been prescribed for an application for examination of a defence witness and in many courts throughout the State, applications are filed in the form of a memo.

7. On an appreciation of the contentions, it is discernible that an opportunity for adducing defence evidence is a part of the right to a fair trial. Section 233(1) of the Code, in unmistakable terms, mandates that when 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. Section 233(3) provides that if the accused applies for the issue of any process for compelling the presence 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.

8. It is trite that an accused cannot be debarred from producing evidence in defence and that section 233(1) is mandatory. Reference to the decision in Bhadran v. State of Kerala (1993) 1 K.L.J 971 and the Full Bench decision in K. Moidu v. State of Kerala (2009) 3 KLT 369 are apposite in this context. Thus the accused has to be mandatorily given an opportunity to adduce his evidence in support of his defence.

9. Section 233(3) of the Cr