Pushpa vs State Of Rajasthan (2023/Rjjd/012553) on 27 April, 2023

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Rajasthan High Court - Jodhpur

Pushpa vs State Of Rajasthan (2023/Rjjd/012553) on 27 April, 2023

1. By way of filing the instant revision petition challenge has been made to the order dated 17.04.2023 passed by the learned Additional District & Sessions Judge, Churu in Criminal Case No.10/2012 whereby the application filed by the accused-

petitioners under Section 233 (3) of the Cr.P.C. has been rejected and the prayer to summon three police officers has been declined.

2. Bereft of elaborated details, the brief facts necessary for disposal of the instant criminal revision petition are that the petitioners are facing trial which is pending before the Court of learned Additional District & Sessions Judge, Churu (hereinafter referred to as 'the learned trial Court') since year 2012 for a (Downloaded on 01/05/2023 at 11:27:52 PM) [2023/RJJD/012553] (2 of 8) [CRLR-460/2023] considerable long period the trial got protracted. There was a list of 24 prosecution witnesses, out of which 10 witnesses were produced and the prosecution did not opt to produce the remaining witnesses thus, the learned trial Court had dispensed with their evidence. After recording the evidence of the prosecution witnesses, an explanation under Section 313 Cr.P.C.

was sought from the accused petitioners wherein the petitioners claimed the evidence of the prosecution to be false and an inclination was shown by them regarding production of evidence.

Whereafter an application under Section 233 (3) of the Cr.P.C. was submitted to summon the three police officers as defence witnesses. The said prayer made by the petitioners was rejected by the learned trial Court vide order dated 17.04.2023 on the ground that aforesaid three witnesses were related to investigation of the case and, therefore, they cannot be taken as a witness of defence, however, a liberty was given to the petitioners to produce the aforesaid witnesses at their own accord.

The said order dated 17.04.2023 is under assail before this Court by way of filing the instant revision petition.

3. Heard learned counsel for the petitioners, learned Public Prosecutor and perused the order impugned and have gone through the relevant provision.

4. Besides constitutional guarantee provided under Article 22 of the Constitution of India, the statutory provision contained under Sections 233 and 303 of the Cr.P.C. have given an absolute right in favour of the accused to defend himself/herself/themselves and to lead evidence in support thereof. The legal provision envisaged (Downloaded on 01/05/2023 at 11:27:52 PM) [2023/RJJD/012553] (3 of 8) [CRLR-460/2023] under the Code of Criminal Procedure makes it abundantly clear that after examination of the accused under Section 313 Cr.P.C., he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof. If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such 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. While dealing with the identical issue, this Court in the matter of Gafur Khan Vs. State of Rajasthan (S.B. Criminal Revision Petition No. 1347/2022 decided on 14.12.2022) has observed as under:-

The right to defend oneself provided under the statute is akin to a fundamental right guaranteed by the Constitution. The scheme of the Code of Criminal Procedure is in consonance with the spirit of the Constitution and criminal jurisprudence. In every prosecution, after commencement of trial, the prosecution is invited to produce its evidence. Upon completion of it, an explanation is being sought under Section 313 of the Cr.P.C. regarding the evidence adduced against the accused. It is also asked to him/her whether he/she wants to produce evidence in his/her defence. As envisaged under Section 315 of the Cr.P.C., the accused is also a competent witness and he/she can be examined on oath to prove his/her innocence. The legal position in this regard is very much clear and the same is stipulated under Section 233 of the Cr.P.C. which is reproduced as under:-

233. Entering upon defence.

(1) Where the accused is not acquitted under section 232, he shall be called upon to enter on (Downloaded on 01/05/2023 at 11:27:52 PM) [2023/RJJD/012553] (4 of 8) [CRLR-460/2023] his defence and adduce any evidence he may have in support thereof.

(2) If the accused puts in any written statement, the Judge shall file it with the record.

(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such 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.

It is manifesting from bare perusal of Section 233 of the Cr.P.C. that if the accused is not acquitted under Section 232 of the Cr.P.C., he shall be called upon to enter in his defence and adduce any evidence he may have in support thereof. It is pertinent to mention here that in reply to the questions asked under Section 313 of the Cr.P.C., the accused has shown his intent to produce evidence in defence. It is the mandate of law that if the accused implores the Court for issuance of process or for compelling the attendance of any witness or production of any document or thing, the Judge shall issue such process. The only exception would be that if the Judge considers that the application has been moved for the purpose of delaying the trial or to vex the parties or otherwise calling or summoning of the evidence would defeat the ends of justice. It is imperative upon the trial Judge to record cogent reasons for denial of the process to compel the attendance of the witnesses or production of any document or any other evidence. It should not be an empty formality and the prayer cannot be rejected on vague, bald and hypothetical grounds. It is true that as per Section 94 of the Juvenile Justice Act, only in absence of any document or any other evidence enumerated therein to show the juvenility of a person, the other documents can be permitted to be considered for the purpose of determining the age of the victim, when a question comes for determination of age of a juvenile. In the case of Jarnail Singh Vs. State of Haryana reported in AIR 2013 SC 3467 Hon'ble the (Downloaded on 01/05/2023 at 11:27:52 PM) [2023/RJJD/012553] (5 of 8) [CRLR-460/2023] Supreme Court has propounded that the provisions of the Juvenile Justice Act are meant to be applied for a delinquent or a juvenile or a child in conflict and the same test can be applied on a victim also. But in the present case and at pre-culmination stage of the trial, no determination of age is to be done as the same is the task to be undertaken by the learned trial Judge after weighing, measuring and true appreciation of evidence brought before it. This Court is of the considered view that the accused cannot be denied adducing of evidence in his defence to show a different age of the victim/prosecutrix than what has been presented by the prosecution before the trial Court. Both the sides are parties to the lis, thus, both of them shall be provided an opportunity to lead evidence. What would be the effect or which part of the evidence would be relied upon is a question under the exclusive domain of the trial Judge who shall adjudicate the issue after critical appreciation of evidence brought on record on behalf of both the parties. One party cannot be denied to lead evidence on a particular point on the ground that the evidence of the other party is of impeccable quality than that of to the opposite party. The accused has a right to produce evidence in defence for the assertion of the fact that the age of the prosecutrix is not so as brought on record by the prosecution in the trial. The right to refute and counter is akin to right to defend which is an absolute right. Suffice it would be to say that the provisions of Section 233 of the Cr.P.C. are mandatory in nature except the exceptions provided therein. The accused has a right to produce evidence in his defence and for that, he may pray for issuance of process to compel the attendance of the witnesses production of which is not under his control. After production of evidence by both the parties, the trial Judge shall adjudicate the issue, after meticulous examination and appreciation of the evidence brought on record by both the parties. At this stage, it cannot be pre-empt that evidence of which party is more in weight. The appreciation of evidence shall be done by the trial judge in light of the statutory provisions, principles of law, jurisprudential spirit and ethos and the factual aspects narrated by the parties.

After careful examination of the material available on record, this Court is of the considered opinion that the accused-petitioner has a right to make a prayer for (Downloaded on 01/05/2023 at 11:27:52 PM) [2023/RJJD/012553] (6 of 8) [CRLR-460/2023] summoning witnesses in defence. The probative value of the oral and documentary evidence cannot be discussed but it cannot be denied from being produced in the trial.

When an accused prays for summoning of evidence in his/her/their defence, then only relevancy of the proposed evidence is to be seen at that point in time. Section 311 of the Code of Criminal Procedure empowers the court to summon any witness or examine any person at any stage of the trial if it is essential for the just decision of the case. The scheme of the Code is clear in this aspect that if any evidence is essential for the just disposal of the case then the same cannot remain un-produced or suppressed, even if the trial is at the stage of culmination. Section 391 further empowers the appellate court to seek additional evidence if necessary at the stage of appeal as well. If the Code itself envisages option of calling for evidence at any stage of trial and even at the stage of appeal in the interest that there is just disposition, then this Court fails to understand why a prayer of an accused seeking production of evidence in his defense be treated with prejudice without there being any adverse or extraordinary circumstances in play against the accused.

An accused should be given equal opportunity at trial to defend himself as is given to the prosecution to present and establish a case against the accused. It is routine for the prosecution to submit a lengthy list of prosecution witnesses according to which the projected prosecution witnesses are then summoned to court for examination and nobody bats an eye; to be more precise, there is no pre-assessment or appreciation of the importance of evidence at that stage before allowing the summoning of list of prosecution witnesses. The accused is liable to equivalent treatment of his prayer seeking summoning of evidence in his defence and the only caution to be exercised is that relevancy of the evidence alone is to be seen and not its probative value.

Coming to the point of delay, this Court is of the opinion that, in some cases, the opportunity to summon defence is not availed by the accused timely and it leads to over-burdening of the dockets of the court but the accused cannot be denied of his legitimate right for the same, however, he/she/they (Downloaded on 01/05/2023 at 11:27:52 PM) [2023/RJJD/012553] (7 of 8) [CRLR-460/2023] may be penalised with an appropriate imposition of cost.

5. It is manifesting from the perusal of the constitutional and statutory provisions that there is an absolute right in favour of the accused to make a prayer for summoning of the defence witness and the same can only be denied in certain exceptional circumstances enumerated in the Section itself. What is reflecting from the order of the learned trial Court that summoning of the three police officials has been sought who conducted investigation in the matter and it was an assertion that all these three officials on different occasions had form an opinion regarding filing of negative final report. It is averred in the application that police officers Mr. Sandeep Sharma, the then SHO, Police Station Dudhwakara, Mr. Girish Kumar, the then Additional S.P. C.I.D. (C.B.) Range Bikaner and Mr. Rajesh Kumar, C.O., I.G. Bikaner earlier conducted investigation in the matter and reached on the conclusion that the alleged offence was not proved against the petitioners and had opined for a negative final report.

6. In this view of the matter, it can be said that the evidence of aforesaid persons is relevant for the justifiable disposal of the case. Otherwise also, the learned trial Court has allowed the petitioners to produce the aforesaid witnesses at their own accord, and denied to summon only, in this fact situation, this Court feels that since the aforementioned persons are police officers, therefore, their production would not be within the control of the petitioners.

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[2023/RJJD/012553] (8 of 8) [CRLR-460/2023]

7. Accordingly, the instant revision petition deserves to be allowed and thus allowed. The order dated 17.04.2023 passed by the learned Additional District & Sessions Judge, Churu is quashed and set aside and the application filed by the petitioner under Section 233 (3) Cr.P.C. is allowed. The learned trial Court is directed to summon police officers Mr. Sandeep Sharma, the then SHO, Police Station Dudhwakara, Mr. Girish Kumar, the then Additional S.P. C.I.D. (C.B.) Range Bikaner and Mr. Rajesh Kumar, C.O., I.G. Bikaner to adduce their evidence before the Court on the date as fixed by it.

8. Pending applications, if any, stand disposed of.

(FARJAND ALI),J 1-Mamta/-

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Rajasthan High Court - Jodhpur