Denial of the accused's right to present evidence for defense undermines the principle of a fair trial and warrants judicial intervention.

ORDER

1. This criminal M.C has been filed to set aside the order dated

13/09/2021 of the fast Track Special Judge Thrissur in S.C No 160 of 2015 to the extend of rejecting the issue of summons to witnesses numbers 1 to 4 and 12 in annexure A schedule of witness preferred by the petitioner/accused.

2. Petitioner/accused (hereinafter be refereed as accused) stands indicted for the offence under section 376(2)(i) of the Indian Penal Code and section 6 read with section 5(m) of the protection of children from sexual offences act, 2012. Prosecution allegation is that petitioner committed aggravated sexual assault on the victim aged 4 years. The specific defence of the accused is that he has been falsely implicated by the family of the victim especially the grandfather who is on enimical terms with him since long. The parties are neighbours and according to him the long standing personal animosity led to the false implication of the accused in the above case.

3. In the impugned order which is produced as annexure-B, would show that accused has cited 15 witnesses in the witness schedule. Witness number one is the medical superintendent Elite Mission Hospital, Koorkkanchery. The witness has been asked to produce the medical records relating to the victim, her mother and grandmother and the purpose is to show that the mother and grandmother of the victim are having mental illness. It is found that the above aspect is not relevant.

4. Witness number two is Chairman Child Welfare Committee and the witness has been asked to produce the file relating to child welfare committee, Thrissur. It is found that the relevancy of the document is not stated in the witness schedule.

5. Witness number three is the Sheristadar Family Court, Thrissur.

That witness has been asked to produce the original petitions of the case files relating to O.P. Nos.596/2016, 334/2016 and 335/2016. It is found that if the accused wants to rely upon those documents for any purpose, he has to apply and obtain certified copies of those documents. It is also found that original case files cannot be called for in this proceedings.

6. Witness number twelve Johny is mistakenly shown as Jyothi in the order. The request for issuing summons to witness No.12 is refused for the reason that he has been cited to prove the dispute and cases pending between CW5 and 10. Witness number five is the grandfather of the victim and the court is of the view that the dispute if any between witness number five and ten do not have any relevance in deciding this case.

7. According to the learned Counsel for the petitioner the main defence of the accused is that there is long standing enmity between the family of the victim and accused and that has lead to the false implication of the petitioner.

8. In T.Nagappa v. Y.R.Muralidhar , (2008) 5 SCC 633 ), though in the context of a complaint initiated on the basis of a dishonour of a cheque, it was held that as to what should be the nature of defence evidence is not a matter which should be left only to the discretion of the court and it is the accused who knows how to prove his defence and the court, being the master of the proceedings must determine as to whether the application filed by the accused is bona fide or not or whether he thereby intends to bring on record a relevant material.

9. In Kalyani Bhaskar v. Sampoornam (2007 2 SCC 258), it has been held that fair trail includes fair and proper opportunities allowed by law to prove his/her innocence that adducing evidence in support of the defence is a valuable right and denial of that right means denial of fair trail and it is essential that rules of procedure designed to ensure justice should be scrupulously followed.

10. In a recent decisionAntony Rosario Fernando and others v. State of Kerala (2021 1 KHC 430) similar view has been expressed by this Court.

11. As per section 233 (3) CrPc if the accused applies for issue of any process for compelling the attendance of any witness or production of any docu