Trial Judge bound to summon defence witnesses unless it vexes, delays or defeats justice: Kerala High Court

On Monday, the Kerala High Court examined the question of whether a Trial Judge could refuse to summon certain witnesses sought to be examined by an accused in criminal trials. (Antony Rosario Fernando v. State of Kerala).A Bench comprising of Justice VG Arun emphasized that a trial judge is bound to issue process for the examination of a witness, since the same was a facet of the right to a fair trial. ."... 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", reads the order..The right to a fair trial included opportunities for the accused to prove his innocence, of which adducing evidence was a part, he explained. A denial of the opportunity would be to deny fair trial, the Court notes in its order.."The adversarial system confers 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 Court underscored..The petitioners, in this case, 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 for the 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. .Objecting to the application for summons, the prosecution 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..The counsel for the petitioner, Advocate Prem Navaz 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..The High Court agreed that the request for summons could be denied only if it is discovered to be an attempt to vex, delay or defeat justice. In terms of Section 233, CrPC, the trial judge was bound to issue summons, Justice Arun held..Reasons such as the possibility of the presence of a defence witness causing annoyance to a prosecution witness, someone else being a more appropriate witness to summon etc. could not be accepted, the Court stated. Speaking specifically about the latter reason by the Trial Judge, the Court said, “The trial court cannot pre-empt the examination of a witness on an assumption that the witness may not be in possession of the document sought to be summoned.”.On these terms, the Court directed the Trial Judge to issue summons to the witnesses in question..Read the Order: