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IN THE HIGH COURT OF ALLAHABAD
Jyotsna Sharma, J.
Diwakar Singh - Petitioner
Vs.
State of U.P. - Respondent
Matters Under Article 227 No. - 5914 of 2023
Decided On : 09-01-2024
Summoning of Defence Witnesses - Criminal Procedure Code - Section 243
Fact of the Case:
The petitioner, a former police officer, filed a petition to set aside the order rejecting his applications to summon certain individuals as defense witnesses in a criminal case against him. The trial court rejected the applications, and the matter went through multiple rounds of litigation, culminating in the current petition.
Finding of the Court:
The court found that the petitioner failed to demonstrate the importance of summoning the proposed defense witnesses and concluded that the applications were made for the purpose of vexation or delay, and to defeat the ends of justice. The court also emphasized the limited scope of interference under Article 227 of the Constitution of India.
Issues: The main issue was whether the trial court was correct in rejecting the petitioner's prayer to summon retired police officers as defense witnesses.
Ratio Decidendi: The court analyzed the provisions of Section 243 of the Criminal Procedure Code, which distinguish between summoning witnesses for fresh examination and those who have already been examined. The court emphasized the necessity for the defense to demonstrate the importance of summoning witnesses for the ends of justice.
Final Decision: The petition was dismissed, as the court found no good reason to interfere with the trial court's order under Article 227 of the Constitution of India.
JUDGMENT :
Jyotsna Sharma, J.
1. Heard Sri Utkarsh Birla, learned counsel for the petitioner and Sri Ram Kumar Verma, learned AGA for the State.
2. This petition under Article 227 of the Constitution has been filed by the petitioner-Diwakar Singh with a prayer to set aside the order dated 18. 01.2023 passed by the Judicial Magistrate, Court no. 5, Varanasi in criminal case no. 3272 of 2019, by which the applications dated 19. 07.2021 and 02.08.2021 were rejected, with a further prayer to issue an appropriate direction to the Judicial Magistrate/the court concerned to comply with the interim order passed by this court in criminal misc. petition no. 2160 of 2023 dated 27.04.2023.
3. Relevant facts are as below:-
(ii) The police investigated the matter and filed a chargesheet, not against the persons named therein but against the petitioner the first informant Diwakar Singh himself, under sections 392, 218, 467, 468, 120-B IPC on 25.07.2003, stating therein that Sub-Inspector Diwakar Singh, with his unknown associates hatched a conspiracy showing a fake incident of loot and he also prepared false papers to show a false incident as genuine one. Durga Prasad Agarwal and number of others were made witness against Sub-Inspector Diwakar Singh;
(iii) During the course of proceedings of the trial, the accused Diwakar Singh moved an application on 13.10.2020, requesting the trial court concerned to summon the files of departmental proceedings and to summon/direct the police officers to remain present on the dates of hearing.
(iv) The trial court wrote a letter dated 20.10.2020 to Additional Director General of Police, Anti-Corruption for production of original record. The department concerned sent the original record by a covering letter dated 29.10.2020;
(v) The prosecution examined its witnesses and the prosecution evidence stood closed on 04.05.2021. Thereafter the statement the accused were recorded under section 313 Cr.P.C.;
(vi) At the stage of defence evidence, the accused moved an application dated 19.07.2021 with following prayers:-
“ …….to pass order directing the prosecution to provide copy of DFR dated 05.06.2022, Interrogation Report dated 15.09.2000 and Statements of PW-5 Shri Shashank Agrawal and Pw-6 Shri Durga Prasad Agrawal which were recorded by the SIT, summon the case property Rs. 2,47,500/- and re-call PW-1 Shri Babu Chand and PW-6 Shri Durga Prasad Agrawal and summon Shri Bua Singh (Retd. DGP) and Shri Atul (Retd. DGP) as defense witnesses to meet the ends of justice.”
(vii) He moved another application dated 02.08.2021 with following prayer:-
“………. to pass order directing to the prosecution to re-call the PW-1 Shri Babu Chand and PW-6 Shri Durga Prasad Agrawal. It is further prayed that Shri Bua Singh (Retd. DGP), Shri Atul (Retd. DGP) and Shri Vijay Kumar Agrawal (Retd. IGP) may also be summoned as defense witnesses for verifying letters, approval orders and DFRs and exhibiting them as Exhibit-Kha to meet the ends of justice.”
(viii) The learned Magistrate dismissed his both the applications (dated 19.07.2021 and 02.08.2021) by a detailed order passed on 16.09.2021;
(ix) The accused preferred a criminal revision no. 242 of 2021. The revisional court partly allowed the revision and passed an order on 26.04.2022 as below:-
(x) The order dated 26.04.2022 of revisional court was challenged in misc. petition no. 3972 of 2022 before the High Court, which is still pending;
(xi) During the pendency of aforesaid misc. petition, the trial court proceeded and passed a fresh order dated 20.09.2022 allowing the applications of the accused dated 19.07.2021 and 02.08.2021 to the extent that Bua Singh (Retd. DGP), Atul (Retd. DGP) and Vijay Kumar Agrawal (Retd. IGP) may be produced as defence witnesses. This order dated 20.09.2
The importance of demonstrating the necessity of summoning defense witnesses under Section 243 of the Criminal Procedure Code and the limited scope of interference under Article 227 of the Constituti....
The High Court has the inherent power to interfere with interlocutory orders passed by the trial court under Section 482 of the Code of Criminal Procedure, even though Section 397(2) of the Code barr....
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.
Non-examination of all witnesses does not invalidate summons if sufficient evidence supports the charges; proceedings against deceased individuals are abated.
At the stage of summoning, the Magistrate is not required to consider the defense version or evaluate the merits of the materials or evidence of the complainant.
The mandatory requirement of recording evidence under Section 200 and 202 Cr.P.C. before summoning the accused and the limited nature of the inquiry under Section 202.
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 discretion to summon witnesses under Section 233(3) of the Criminal Procedure Code should be exercised judiciously, and applications must establish the relevance of the witnesses and not be aimed....
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