Kerala High Court
T.N. Janardhanan Pillai vs State on 5 February, 1991
Equivalent citations: 1992CRILJ436
JUDGMENT S. Padmanabhan, J.
1. In this appeal against conviction, I do not propose to go into the facts or evidence because I am satisfied that the Enquiry Commissioner and Special Judge acted irregularly in shutting out defence evidence.
2. After the prosecution evidence was over, the appellant was called upon to enter upon his defence. He filed a schedule of three witnesses. They were summoned and all of them appeared on 22-9-1990. Two of them are PWs 5 and 8, who were already cross-examined. The appellant wanted to further cross-examine PW 5 for some purpose, including confrontation with Ext. P 18. On the ground that the appellant could have cross-examined the witness with reference to Ext. P 18 on the previous opportunity, Special Judge disallowed further examination and discharged the witness. The purpose of further examination of PW 8 was to prove some documents. Since these documents were not relied on by the prosecution, that witness was also discharged without permitting examination.
3. Right of the accused to adduce evidence of his choice is part of fair trial. Whether it be sessions trial, trial of a summons case, warrant case or summary trial, that right is there when it comes to the stage of adducing defence evidence. It is the right of the accused, at the appropriate time, to be called upon to enter his defence. So far as sessions trials are concerned, there is Section 233 and in trial of warrant cases, there is Section 243 of the Code of Criminal Procedure. It is true that there is slight difference between Sections 233 and 243. The words "for the purpose of examination or cross-examination" appearing in Section 243 are absent in Section 233. For that reason, the proviso to Section 243 is also absent in Section 233. That does not mean that in a sessions trial, at the stage of defence evidence, accused is not entitled to recall a prosecution witness, who was already examined either for the purpose of cross-examination or for being examined as a defence witness. The omission in Section 233 of the above words appearing in Section 243 is made good by Section 233(1) wherein the accused is given the right to adduce "any evidence he may have in support thereof". So also, Section 233(3) says that if the accused applies for the issue of process for compelling the attendance of any witness', the judge shall issue such process. The right is not a mere formality, but it is an essential part of a criminal trial. Every opportunity must be given to the accused to adduce evidence in his defence. It is for the accused and not for the judge to say what evidence or what amount of evidence he thinks of proper to place on record in his defence.
4. Right of the court to deny an opportunity for defence evidence is limited to cases where it is satisfied, for reasons to be recorded in writing, that the 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. Denial of the right of defence evidence is not an irregularity curable Under Section 465. Even in cases where an accused cross-examined or had the opportunity of cross-examining a prosecution witness, he could ask for examination or cross-examination of that witness at the stage of defence evidence. In such cases, apart from the question of vexation, delay or defeating the ends of justice, court can refuse examination if it is satisfied that it is not necessary for the ends of justice also. For other reasons, court has no discretion to refuse issue of process to compel the attendance of any witness cited by the accused. The discretion in refusing the chance will have to be exercised judicially for the advancement of justice and fair trial even if cases coming under Sub-section (3) of Section 233 as well as Sub-section (2) of Section 243 and the proviso. 1 am not forgetting the fact that there is some difference in the procedure in the trial of warrant cases where there is a right of further cross-examination.
5. In this case, right to examine one witness was denied on the ground that he could have been cross-examined with reference to Ext. P 18 earlier. The other witness was discharged on the ground that the documents sought to be proved were not relied on by the prosecution. Documents not relied on by the prosecution could also be relied on in defence. Necessity for cross-examination with reference to Ext. P 18 might have arisen or might have become known only after the prosecution evidence was over. These are not proper reasons for denying the opportunity.
6. Further, discretion in denying an opportunity for defence evidence, whether it be on the ground that the purpose of the evidence is vexation or delay or defeating the ends of justice or satisfaction under the proviso that it is not necessary in the ends of justice, will have to be exercised at the time when the application for defence evidence is considered. In this case, Special Judge allowed the application after exercising his discretion and summoned the witnesses. The witnesses were present also. Then there is no question of exercising the discretion again after ascertaining for what purpose the witness is going to be examined. That matter had to be considered at the time of ordering the application. The subsequent order amounts to a review of the earlier order, which is not permitted.
7. In the light of these facts, I am satisfied that the Special Judge was not justified in denying the opportunity for defence evidence. In the interest of justice and fair trial, appellant must be given an opportunity to examine PWs. 5 and 8.
Criminal appeal is allowed. Conviction and sentence are set aside. The case is remanded to the Special Judge with direction to permit examination of PWs. 5 and 8. The case will then be disposed of on the merits, according to law. Office will transmit the records forthwith and the appellant will appear before the Special Judge on 6-3-1991.