Production Of Defence Witness | Power Of Court Vs Right Of Accused: Allahabad High Court Explains Scope Of Sections 311 & 233 CrPC

“Under section 311 CrPC, the power lies in the courts only and under section 233 CrPC, the right lies with the accused and the court's interference is limited,” the Court emphasized.

For context, while Section 311 CrPC relates to the Court's power to summon and examine or recall and re-examine any material witness at any stage to arrive at a just conclusion, Section 233, on the other hand, deals with `entering upon defence' which relates to the accused can enter upon defence and he can apply for the issue of any process for compelling the attendance of any witness in his defence

Explaining the scope of both these provisions, the bench of Justice Jyotsna Sharma, at the outset, observed that as per Section 311 CrPC, the power lies with the Court alone to recall and re-examination of any person who has already been examined including the defence witnesses.

The Court noted that this power has to be exercised when the court finds it necessary to summon/recall any witness for the just decision of the case.

“The law puts no fetters on the powers of the courts to call for any witness to attain the highest goal of justice. In my opinion, this provision of law gives expression to the inherent power of the courts which is available to them by virtue of being the supreme authority who has been entrusted with responsibility to do justice,” the Court said.

On the other hand, referring to the scope of Section 233 CrPC, the Court observed that the provision is applicable when the prosecution evidence is complete and the accused is given an opportunity to produce the evidence in its defence.

The Court underscored that this right to produce defence evidence belongs to the accused and not to the court concerned, as is the case with Section 311 CrPC, in the sense that the court concerned shall ordinarily issue process at the instance of the accused.

However, the Court added, the Court can decline to summon the witness only for the reason that the request is made for vexation or delay or for defeating the ends of justice.

It may be noted that under Section 311 CrPC, the court has a plenary power to summon any person at any stage of the proceedings as a witness including recall and re-examination of any person who has already been examined.

The Supreme Court has consistently held that the power conferred under this provision should be invoked by the court only to meet the ends of justice when strong and valid reasons exist and it should be exercised with great caution and circumspection.

On the other hand, the provision under Section 233 CrPC is an essential part of the session trial and is applicable when the prosecution evidence is complete and the accused is given an opportunity to produce the evidence in its defence.

The case in brief

The Court was essentially dealing with a criminal revision plea filed by one Anupam Singh, a murder accused, challenging an order of the Additional District and Sessions Judge, Ambedkar Nagar whereby the permission to examine defence witnesses (during the trial) was refused.

It was contended that that earlier, an application was moved under section 311 CrPC and thereafter, a second application was filed under the provisions of section 233 CrPC, however, on both occasions, the production of the same witnesses was sought.

The request was refused as the court noted that earlier the same witnesses were sought to be summoned under section 311 CrPC and the said plea was rejected.

Challenging the order in the HC, the revisionist argued that if the summons is not issued to call those persons as defence witnesses, the accused shall be highly prejudiced in his defence and his valuable right as regards fair trial shall stand defeated.

Taking into account the facts and circumstances of the Case, the Court found no justification for the trial court's refusal to summon witnesses.

Stressing that the Court can refuse to issue summons only on the ground that it is made to delay the proceedings or to defeat the ends of justice only, the Court observed thus:

“The observation of the learned trial court that summoning the witnesses will tantamount to review is misconceived. The trial court failed to apply the law in right perspective and ignored the difference in scope and implications in which the provisions of section 311 Cr.P.C. and section 233(3) Cr.P.C. are meant to be applied. Hence the order of the trial court suffers from legal flaw and is not sustainable,” the Court noted as it allowed the plea.

Consequently, the Court gave liberty to the revisionist to move an application giving names of 2 persons (out of 5 named) he seeks to summon as defence witnesses.

HC also directed the trial court to issue summons for their production as defence witnesses.

Appearances

Counsel for Revisionist: Nadeem Murtaza

Counsel for Opposite Party: Govt. Advocate, Kailash Chandra, Mayank Pandey

Case title - Anupam Singh vs. State Of U.P. Thru. Prin.Secy. Home And Anr 2024 LiveLaw (AB) 41 [CRIMINAL REVISION No. - 794 of 2018]

Case Citation: 2024 LiveLaw (AB) 41

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