Denial of the opportunity to present evidence by the accused constitutes a breach of the right to a fair trial.

IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE GAJENDRA SINGH CRIMINAL REVISION No. 4168 of 2025 KALYAN AND OTHERS Versus THE STATE OF MADHYA PRADESH Appearance:

Shri Praveen Yogi - Advocate for the petitioner.

Shri Rajesh Joshi - GA for the State.

(Heard on: 19.09.2025)

(Delivered on: 22.09.2025)

ORDER Heard on IA No.12524/2025 which is an application for condonation of delay of 124 days in filing this criminal revision.

2. For the reasons stated in the application the IA No.12524/2025 is allowed and the delay caused in filing the criminal revision is hereby condoned.

3. This criminal revision under section 438 of the B.N.S.S., 2023 /

under section 397 of the Cr.P.C., 1973 is preferred challenging the legality of order dated 22.01.2025 in ST No.46/2023 by the Additional Judge to the Court of Additional Sessions Judge, Sanwer, District Indore (M.P.) whereby an application under section 61 of the Bharatiya Sakshya Adhiniyam , 2023 preferred by revision petitioner has been rejected.

4. Facts of the case in brief are that in prosecution under sections 115 Signature Not Verified Signed by: AJIT read with 34 and 506 of the IPC had initiated on crime No.132/2023 registered at P.S.-Chandrawatiganj Indore (M.P.). Revision petitioner preferred Annexure-A/2 at the stage of defense evidence to take the electronic record in the form of USB cable and pendrive along with section

63(4) of the Bharatiya Sakshya Adhiniyam , 2023.

5. Application was opposed by filing reply Annexure-A/3 on the ground that proposed electronic record is ambiguous. The transcript don't discloses that the conversation relates to which person and to which subject. It is only with a view to linger-on the case at the stage of arguments the discrepancies were denied by filing the arguments through Annexure-A/4.

6. Trial court rejected the application on the ground that transcript does not discloses that it is material with the defense of revision petitioner accordingly the electronic and transcript is no relevance.

7. Challenging the order this criminal revision is preferred.

8. Heard.

9. Section 233 of the Cr.P.C.,1973 equivalent provision section 256 of the B.N.S.S.,2023 is being reproduced below:-

" 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 Judge shall file it with the record.

(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice."

Signature Not Verified Signed by: AJIT

10. In the case of M Kalyani Baskar Vs. Ms. Sampoornam (2007) 2 SCC 258 the Apex Court in dealing with the power under section 243 of the Cr.P.C.,1973 observed that Fair trial' includes fair and proper opportunities allowed by law to prove his/ her innocence. Adducing evidence in support of the defense 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.

11. It is the accused who has to prove his defense and trial may refuse only when the prayer is proper seems to have abuse of the process. The case does not seems that the application was purported only to delay or otherwise abuse of process. Accordingly the trial court committed illegality in rejecting the application. Hence the impugned order is set aside and trial court is directed to pass a fre