The trial court's rejection of the defence witness application was improper under S.233 Cr.P.C.

1. This Criminal Revision under S.397, S.401 of Cr.P.C has been filed against the order dated 24.09.2021 passed by Special Judge, Prevention of Corruption Act Vidisha, in SC Lok 06/2017 by which the application filed by the applicant for summoning the defence witnesses No.1 to 4 and 6 has been rejected on the ground that they are the Government officials and in case if they are summoned then it will hamper the Government work and the prayer for summoning proprietor of Amit Hardware has been rejected on the ground that he has already been examined as prosecution witness.

2. It is submitted by Counsel for applicant that applicant is facing trial under the Prevention of Corruption Act and the case was fixed for recording of defence evidence and he filed a list of witnesses along - with the details of records which were sought to be proved by examining those witnesses. However, the Trial Court has rejected the application only on the ground that the witnesses mentioned at serial No.1 i.e. Secretary, Gram Panchayat Ukayla, Serial No.2 - Public Information Officer, Janpad Panchayat Ganjbasoda, District Vidisha, Serial No.3 - CEO, Janpad Panchayat Ganjbasoda, District Vidisha, Serial No.4 - SHO, Police Station City Kotwali, Ganjbasoda, District Vidisha, and Serial No.6 - the present Secretary of Gram Panchayat Visdha, are the Government officials and in case if they are summoned then it will hamper their official duties and the witness mentioned at serial No.5 has already been examined as prosecution witness.

3. Heard learned Counsel for the parties.

4. The reason for declining the prayer to examine witnesses mentioned at Serial Nos.1 to 4 and 6 cannot be a ground to deprive the applicant from examining the witnesses in his defence.
S.233 of Cr.P.C read as under : -
"233. Entering upon defence. - (1) Where the accused is not acquitted under S.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 justiceA"

5. From the plain reading of S.233 (3) of Cr.P.C, it is clear that application can be refused on the ground that it has been made for purpose of vexation or delay or for defeating the ends of justice. The prayer for summoning five witnesses mentioned as serial Nos. 1 to 4 and 6 has been rejected merely by mentioning that in case if they are asked to appear before the Trial Court as a defence witness, then it would hamper their Government job.

6. However, it is fairly conceded by Shri Sankalp Sharma that the prosecution also must have examined certain Government officials.

7. The reasoning which has been assigned by the Trial Court is completely stranger to the provisions of S.233 of Cr.P.C.

8. Therefore, the reasons assigned for rejecting the prayer for examination of witnesses mentioned at serial Nos.1 to 4 and 6 cannot be approved.

9. So far as the rejection of the prayer for summoning the proprietor of Amit Hardware is concerned, it is submitted that the prayer has been rejected only on the ground that proprietor of Amit Hardware has already been examined as a prosecution witness and full opportunity was granted to the applicant to cross examine him.

10. The Supreme Court in the case of State of M.P. v. Badri Yadav and Another , reported in (2006) 9 SCC 549 : (AIR 2006 SC 1769