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IN THE HIGH COURT OF RAJASTHAN
Farjand Ali, J.
Subhash Dudi - Petitioner
Versus
State of Rajasthan - Respondent
S.B. Criminal Misc(Pet.) No. 1785 of 2024
Decided On : 14-05-2024
(A) Code of Criminal Procedure, 1973 - Sections 233, 311, and 391 - Right to defend - The accused has an absolute right to summon witnesses in his defence, and the trial court must allow such requests unless there are cogent reasons for denial. The court emphasized that both parties should have equal opportunities to present evidence. (Paras 4, 5, 6, and 7)
(B) Evidence - Relevance - The court ruled that the relevance of proposed evidence should be assessed at the time of the request, not its probative value. (Paras 6 and 7)
Facts of the case:
The petitioner, an accused, sought to summon witnesses for his defence after the prosecution's case was completed. The trial court allowed some but not all witnesses, prompting the petitioner to challenge this decision.
Findings of Court:
The court found that the accused has a right to summon witnesses relevant to his defence and modified the trial court's order to allow the summoning of additional witnesses.
Issues: The main issue was whether the accused could summon witnesses for his defence after the prosecution's case.
Ratio Decidendi: The court held that the provisions of the Code of Criminal Procedure ensure the accused's right to defend himself, and the trial court must allow the summoning of witnesses unless there are valid reasons for refusal.
Result: Miscellaneous petition allowed.
ORDER :
Farjand Ali, J.
The petitioner has preferred the instant criminal misc. petition under Section 482 of the Cr.P.C. being aggrieved by the order dated 14.02.2023 passed by the learned Additional Sessions Judge, Jodhpur District in Sessions Case No.61/2019 (CIS No.191/2018) whereby the application under Section 233(3) of the Cr.P.C. was partly allowed and certain witnesses were summoned for defence.
2. The petitioner is an accused of a case and facing trial. After completion of the prosecution witnesses, an explanation was sought under Section 313 Cr.P.C. wherein he abjured from the allegations and claimed innocence. When it was asked whether he would lead evidence in defence; the answer was in affirmative. He moved an application for summoning of certain witnesses to bolster his defence. The said application though allowed but for production of two witnesses only. It is not reflecting that for what reason the prayer for other witnesses have been rejected.
3. Section 233 of the Cr.P.C. gives wide powers to the trial Court to allow the accused to enter into defence. He may produce the witnesses in support of his defence or if the witnesses are not within his reach or it is shown that the witnesses are not coming upon his request but they are relevant for the just decision of the case; in that situation the trial Court can issue process for summoning of those persons prayer for which is made on behalf of the defence.
4. While dealing with the identical issue this Court had passed a judgment in the case of Pushpa v. State of Rajasthan & Anr. in S.B. Criminal Revision Petition No. 460/2023 decided on 27.04.2023, in which elaborate discussion of the provision has been made. The relevant portion of aforesaid order is reproduced hereinbelow:-
The right to defend oneself provided under the statute is akin to a fundamental right guaranteed by the Constitution. The scheme of the Code of Criminal Procedure is in consonance with the spirit of the Constitution and criminal jurisprudence. In every prosecution, after commencement of trial, the prosecution is invited to produce its evidence. Upon completion of it, an explanation is being sought under Section 313 of the Cr.P.C. regarding the evidence adduced against the accused. It is also asked to him/her whether he/she wants to produce evidence in his/her defence. As envisaged under Section 315 of the Cr.P.C., the accused is also a competent witness and he/she can be examined on oath to prove his/her innocence. The legal position in this regard is very much clear and the same is stipulated under Section 233 of the Cr.P.C. which is reproduced 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 puts in any written statement, the
The accused has an absolute right to summon witnesses in defense, and the trial court must allow such requests unless there are cogent reasons to deny them.
The accused's right to summon defense witnesses is fundamental and must be upheld unless there are compelling reasons to deny such requests.
The court emphasized the necessity of allowing applications under Section 233 Cr.P.C. to ensure a fair trial, particularly in serious criminal cases.
The accused has an unfettered right to summon witnesses essential for the defence, and the trial court's discretion to reject such requests is limited to preventing vexation or delay.
The accused has the right to present defense witnesses in a trial, and the trial court must issue summons unless there are valid grounds for refusal, ensuring that fair trial rights are upheld.
Co-accused cannot be summoned as defense witnesses in their trials under the Code without considering critical legal provisions; access to justice must be balanced with procedural integrity.
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