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.

CAV JUDGMENT

Date : 21-11-2025 The instant revision application is directed against the order dated 07.08.2025 passed by learned Additional Sessions Judge-XII, Gopalganj in Sessions Trial No. 116 of 2024, arising out of Vijaipur P.S. Case No. 265 of 2021, whereby and whereunder the petition filed by the defense/accused petitioner under Section 233 of the Code of Criminal Procedure ( hereinafter ‘the Code’) has been rejected.

02. Facts of the case as it emerges from the record are that the opposite party no. 2 gave a written complaint to the police on 03.12.2021 alleging therein, that on 02.12.2021 at 04:30 P.M. he received information about petitioner Jitendra Paswan along with his men, forcibly ploughing his parental land. The informant along with his men who were present with him at that time, reached the spot and found the petitioner and other 18 co-accused persons making an unlawful assembly forcibly ploughing the land and they were variously armed. When the informant queried from the petitioner why they had been ploughing his land, at the instigation of the petitioner, the co-accused persons assaulted the persons accompanying the informant and a number of persons were stabbed. The nephew of the informant died on the spot and a number of persons received serious injuries. On the basis of the aforesaid written report, Vijaipur P.S. Case No. 265 of 2021 dated 03.12.2021 was registered for the offences under Sections 147, 148, 149, 341, 323, 324, 326, 307, 302 of the Indian Penal Code. It transpires five sessions trials proceeded out of Vijaipur P.S. Case No. 265 of 2021. Sessions Trial No. 307 of 2022 and Sessions Trial No. 415 of 2022 concluded resulting in conviction of the accused persons. Three Sessions Trial No. 293 of 2023, Sessions Trial No. 585 of 2023 and Sessions Trial No. 116 of 2024 have been pending and the petitioner is accused in Sessions Trial No. 116 of 2024 which is pending at the stage of defense evidence. when the Sessions Trial No. 116 of 2024 reached the stage of defense evidence, the petitioner filed an application dated 04.08.2025 under Section 233 of the Cr.P.C. for calling two convicts namely Prem Kharwar and Raj Kumar Kharwar of Sessions Trial No.

307 of 2022 as defense witnesses. The learned trial court after hearing both the sides rejected the application dated 04.08.2025.

This order is under challenge before this Court.

03. Mr. Ramakant Sharma, learned senior counsel appearing on behalf of the petitioner vehemently contended that the order passed by learned trial court is not sustainable in the eyes of law and on facts. The learned trial court passed the order in a mechanical manner and the order is cryptic in nature. From bare perusal of the impugned order it is apparent that the application of the petitioner has been rejected merely on the ground that the same did not disclose how the convicts were acquainted with the facts of the case but this finding is erroneous as the learned trial court did not consider the fact that the person sought to be called as witnesses were present during the occurrence and they were convicted in separate sessions trial. They are the eye witnesses, and for the aforesaid reason, are competent witnesses to be examined on behalf of defense. Learned senior counsel further submitted that Section 233 (3) of the Code provides that if the accused applies for the issuance 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. But in the present case, no such finding has been recorded to refuse the issuance of process. If the petitioner is not allowed to put up his defense, right to fair trial would be defeated. The learned senior counsel further submitted that right to fair trial and access to justi