Trial Court Has Discretion to Reject Defence Witness Summons if Aimed at Vexation or Delay: Allahabad High Court

Allahabad High Court Upholds Trial Court's Discretion in Rejecting Summons for Defence Witnesses

Prayagraj, January 9, 2024 – The Allahabad High Court has dismissed a petition filed by a Sub-Inspector of Police, Diwakar Singh , challenging a lower court's order that rejected his application to summon retired senior police officers as defence witnesses. Justice Jyotsna Sharma , presiding over Court No. 82, delivered the judgment, affirming the Judicial Magistrate's decision and emphasizing the trial court's discretionary power under Section 243 of the Criminal Procedure Code (CrPC) to refuse witness summons if deemed vexatious or intended for delay.

Case Background: From FIR to Defence Evidence

The case originates from an FIR lodged by the petitioner, Diwakar Singh , in 2000, concerning alleged offences of loot and violations of the FEMA Act. Ironically , subsequent investigations led to a chargesheet being filed against Diwakar Singh himself for offences including extortion, forgery, and conspiracy. During the trial, at the stage of presenting defence evidence, Singh applied to the Judicial Magistrate, Court No. 5, Varanasi, seeking to summon three retired Director Generals and an Inspector General of Police as defence witnesses. He argued that their testimony was crucial to his defence, particularly concerning departmental proceedings and reports related to the case.

Legal Maneuvering and Multiple Court Orders

The trial court initially rejected Singh 's applications. This decision was partially overturned in a revision, directing the trial court to reconsider the summons for the retired officers. Subsequently, in a second round of litigation, another revisional court set aside the order to summon the officers, directing the trial court to provide reasoned grounds if it decided to summon them again. Finally, in the impugned order dated January 18, 2023, the Judicial Magistrate once again rejected Singh 's plea, leading to the current petition under Article 227 of the Constitution before the High Court.

Petitioner's Arguments: Right to Fair Defence

Counsel for the petitioner, Utkarsh Birla , argued that denying the opportunity to present defence evidence, including summoning witnesses deemed necessary by the accused, infringes upon the right to a fair trial. He contended that the retired police officers' testimony was essential to demonstrate flaws in departmental inquiries and to support his defence. Reliance was placed on Supreme Court and Delhi High Court judgments emphasizing the importance of defence evidence.

High Court's Observations: Scrutiny under Section 243 CrPC

Justice Jyotsna Sharma meticulously analyzed Section 243 CrPC, highlighting its dual approach. The court pointed out that the law distinguishes between summoning new defence witnesses and recalling prosecution witnesses. For new witnesses, the Magistrate can refuse summons only if the application is for "vexation or delay or for defeating the ends of justice." For recalling witnesses already examined, a stricter test of "necessary for the ends of justice" applies.

The High Court scrutinized the petitioner's applications and found them lacking in demonstrating the materiality of the retired officers' testimony. The court noted:

> "From bare perusal of the statements, as mentioned in the original applications dated 19.07.2021 and 02.08.2021, it can fairly be inferred that the defence has not been able to demonstrate that how and why examination of these witnesses is important for his defence and that why and how their evidence may prove helpful to disprove the prosecution case or to prove his innocence or even to create cracks or doubts in the prosecution story."

The trial court's observation that summoning senior retired officers under these circumstances appeared to be for "vexation or delay" was deemed "cogent and pertinent" by the High Court.

Decision Affirmed: Discretion and Reasonableness Prevail

Ultimately, the Allahabad High Court found no grounds to interfere with the Judicial Magistrate's order under its supervisory jurisdiction under Article 227. The court reiterated that this power is to be exercised sparingly to prevent miscarriage of justice or flagrant violations of law. Finding no such situation in this case, the petition was dismissed, upholding the trial court's reasoned decision to reject the summons for defence witnesses.

This judgment underscores the discretionary power vested in trial courts under Section 243 CrPC to ensure the trial process is not unduly delayed or misused for vexatious purposes, while also balancing the accused's right to present a proper defence.