The Kerala High Court on 18.01.2021(Monday) comprising of a Bench of Justice VG Arun while delivering a judgment observed that the trial Judges do not have absolute discretion to prune or reject the list of witnesses submitted by the accused, (Antony Rosario Fernando v. State of Kerala)
The Bench observed that the trial court is empowered to interfere with only when the court is convinced that the application seeking issuance of summons is submitted for the purpose of vexation or delay or for defeating the ends of justice.
Facts of the Case
In this case the petitioners, were accused of being in illegal possession of Hashish oil and currency. The petitioners were booked under provisions of the Narcotic Drugs and Psychotropic Substances Act, 1987, after which their trial commenced before an Additional Sessions Judge.
When the matter was posted for defence evidence, the counsel on behalf petitioners submitted two witness lists praying that the persons in the lists be summoned. One list contained the name of a sole witness and the other list contained certain other names.
The prosecution objecting to the application for summons contended that the lists were an attempt to protract the proceedings and cause annoyance to the witnesses. The Court allowed the witness-summon-applications in part, declining to summon the sole witness and three others of the second list.
The Trial Court had observed that the sole witness sought to be summoned was the wife of an independent prosecution witness whose testimony was not necessary to prove the defence case. Therefore, she was being summoned to cause annoyance to the prosecution witness, the Judge concluded.
Further, since another person could have been summoned to get the information sought from one of the witnesses in the second list, the presence of the other two was unnecessary and would result in procrastination, the lower court stated in its order.
The petitioners thus moved the High Court challenging the portion of order that rejected part of their witness lists.
Contention of the Parties
The counsel on behalf of the petitioner, submitted that the order in question defeated the right of an accused to adduce evidence. As per the provisions pertaining to defence evidence (Section 233(3) CrPC), the Court was obligated to issue process to any witness cited by the accused, he argued further.
He told the Court that the only reasons open for a court to refuse the issue of process is if the summons vexed, delayed or defeated the ends of justice, as per the Supreme Court ruling in Ronald v. State of West Bengal.
Referring to the contention that the witness examination could cause annoyance to a prosecution witness, it was averred that such a reason could not be a ground to refuse summons.
Apart from this, the counsel also challenged the refusal to summon two witnesses of the second list on the ground that another witness could be summoned to get the sought information.
The prosecution maintained that the Trial Judge had arrived at his decision after examining the gravity of the offences alleged and the purpose for the summons.
Courts Observation & Judgment
The trial court is empowered to interfere with only when the Court is convinced that the application seeking issuance of summons is submitted for the purpose of vexation or delay or for defeating the ends of justice, the Court observed.
The Court said the possibility of annoyance to the witness sought to be examined, or to prosecution witness already examined, is not a ground for refusing to summon that witness.
The High Court, referring to Section 233(3) CrPC, observed thus:
“A careful reading of the Section shows that the Court is bound to issue process for compelling the attendance of witnesses, unless the court is of the opinion that the application for summoning the witnesses ought to be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice”.
The adversarial system confer the accused with the indefeasible right to cross-examine the prosecution witnesses and to let in defence evidence. This indefeasible right cannot be denied lightly. The right to fair trial includes fair and proper opportunities allowed by law to prove the innocence of the accused. Adducing evidence in support of the defence is such an opportunity. Denial of that opportunity means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed.
“The decisions in Arivazhagan or Santhosh Kumar cannot be understood to have held that the trial judges have absolute discretion to prune or reject the list of witnesses submitted by the accused. Going by the plain meaning of the words in Section 233(3) and the settled legal position, the trial court is empowered to interfere with only when the court is convinced that the application seeking issuance of summons is submitted for the purpose of vexation or delay or for defeating the ends of justice. In my considered opinion, the petitioner cannot be attributed with any such intention in having filed Annexures A2 and A3 and hence the interference with the list as per Annexure A5 order cannot be sustained,” the order reads.
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