A trial court cannot compel an accused to execute a warrant against a defense witness, as per statutory duties for securing witness attendance.

ORDER :

V.G.Arun, J.

The petitioner, an accused in C.C. No.635 of 2016, on the files of the Additional Chief Judicial Magistrate Court, Ernakulam is aggrieved by Annexure A5 proceedings of the trial court, handing over the warrant against one of the defence witnesses to the accused for its execution.

2. The essential facts are as under;

The trial of petitioner's case has commenced and the Registrar of Societies, Renga Reddy District, Telangana was examined as DW2 on 22.07.2024. As the witness failed to produce certain vital documents, the petitioner filed an application to recall that witness, which the court below allowed by Annexure A3 order. Thereafter, the witness failed to appear on summons. Hence, warrant was issued against him. The SHO, Ernakulam Town South Police Station, who was entrusted with the duty of executing the warrant having failed to do so, was called upon to show cause. After recording that the reply given by the SHO to the show cause notice is not satisfactory, the Magistrate directed to repeat the non-bailable warrant. As the warrant was not executed even thereafter, the court, by Annexure A5 proceedings dated 16.09.2025, repeated the warrant and steps against the witness and issued the warrant by hand to accused Nos.1 and3.

3. It is the contention of the learned Counsel for the petitioner that the trial court cannot compel an accused to execute the warrant issued against a witness, even if it is a defense witness. Reliance is placed on the decision in Santhosh Kumar v. State [2016 (5) KHC 709] to contend that it is the duty of the court to issue process and secure the presence of the witnesses, documents or things.

4. Learned Public Prosecutor submitted that the court was compelled to hand over the warrant to the accused, since absence of the defense witness was delaying the trial indefinitely.

5. The short question is whether the trial court can hand over the warrant to the accused to compel production of a defense witness. Here, it is essential to note that as per Rule 206 of the Criminal Rules of Practice, Kerala it is the responsibility of the court/Government to pay the allowances to the complainants and the witnesses, whether it be prosecution or the defense witnesses, in cases shown in the First Schedule of the Code as non-bailable. Rule206 is extracted below for easy reference;

“Rule 206. Cases in which the Government will pay batta.-

(1) Subject to the Rules hereinafter contained, the allowances to complainants and witnesses (whether for the prosecution or for the defence) shall be paid by the court in the following classes of cases, namely:-

(a) Cases shown in the First Schedule of the Code as non-bailable;

(b) Cases in which prosecution is instituted or carried on under the orders or with the sanction of the Government or of any public servant acting as such; (c) Cases in which the witness has been compelled to attend by a process issued under Section 311 of the Code;

(d) Cases in which the court certifies that the attendance of such witness was in furtherance of the interests of public justice.”

6. The petitioner is facing trial for the offences punishable under Sections 406 and 420 of IPC, both of which are included as non-bailable in the First Schedule to the Code of Criminal Procedure . Further, Section 87 of the Code (Section 90 of the BNSS), dealing with the power of courts to issue warrant in lieu of, or in addition to summons, does not also envisage service of warrant to witnesses through the accused. Judicial Form No.6 of the Criminal Rules of Practice, Kerala extracted hereunder makes the position more clear;