IMPORTANT POINT
The main legal point established in the judgment is that the accused has the right to adduce all his evidence during a trial, and denial of this right amounts to denial of fair trial.

ORDER :

The right of an accused to adduce all his evidence during a trial is raised for consideration in this petition under section 482 of the Code of Criminal Procedure 1973.

2. Petitioner as the first accused in S.C.No.995 of 2022 on the files of the Additional Sessions Court, North Paravur is facing prosecution along with 12 others for the offences under Sections 20(b)(ii)(B) and 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985. After the prosecution examined 77 of the 155 witnesses cited by them, the defence was called upon to enter their evidence. Though petitioner filed a list of five defence witnesses, summons was issued to only three of the five. By the impugned order, the learned Sessions Judge dismissed the application to issue summons to witnesses Nos.1 and 3 in the witness list. Petitioner is aggrieved by the impugned order dated 30.05.2024.

3. Sri. Ralph Reti John, the learned counsel for the petitioner, submitted that the impugned order is erroneous as it has denied the accused his right to adduce all his evidence. It was further submitted that if summons to all the witnesses are not issued it would amount to denial of the right to fair trial and cause prejudice to the defence evidence. The learned Counsel also submitted that the observation of the learned Sessions Judge that the attempt is to delay the trial is wholly without any basis.

4. I have heard Smt. Sreeja V., the learned Public Prosecutor, also.

5. Witness Nos.1 and 3 in the list of defence witnesses submitted by the petitioner are not persons who have already been examined. The trial court refused to issue summons to two of the five witnesses stating that they are not material to determine the points involved in the case and that those witnesses are attempted to be examined to drag the proceedings indefinitely. Out of the five witnesses named in the defence list, summons were issued to three and they were examined as well. It is thereafter that the trial court refused to issue summons to the remaining two witnesses.

6. Section 233 Cr.P.C. deals with the defence evidence. As per the provision, if an accused is not acquitted after prosecution witnesses are examined, then the accused shall be called upon to enter his defence and adduce any evidence he may have, in support thereof. Calling upon the accused to enter his defence is an essential part of a criminal trial. The purpose of providing such an opportunity to the accused cannot be defeated nor can it be lost sight of by the trial judges. A complete and effective compliance of Section 233(1) Cr.P.C. ought to be ensured in every criminal trial. In the decision in Mrs. Kalyani Baskar v. Mrs. M.S Sampoornam [(2007) 2 SCC 258] while dealing with the powers under section 243 Cr.P.C it was observed that 'Fair trial' includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence 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 courts should be jealous in seeing that there is no breach of them.

7. When the accused submits a list of witnesses, it is not open for the court to pick and choose the witnesses for issuing summons. Though the court is certainly bestowed with the power to refuse to summon a witness, such refusal can only be for reasons to be recorded in writing, which have to relate to delaying tactics or defeating the ends of justice or as being vexatious. Reference to the decision in Rajesh Talwar and Another v. Central Bureau of Investigation and Another [(2014) 1 SCC 628], is appropriate in this context.

8. Normally, it is not proper for a trial court to conclude during the middle of a trial, that some witnesses would not advance the case of the accused and are not necessary to be examined, while others would. As the defence is entitled to take up inconsistent defences during a trial, the co