How to decide application of accused for production of documents and examination of witnesses?

 Clearly the documents production of which is sought for by the petitioner, are relevant for the just decision of the case. Petitioner had earlier filed an application seeking production of these documents as well as summoning of the concerned witnesses at the stage when prosecution evidence was being led. Said application was permitted to be withdrawn on 04.07.2018, with liberty to summon the relevant record and witnesses at the stage of defence evidence. Once liberty was granted to the petitioner to summon the relevant record and the witnesses at the stage of defence evidence, subject application could

not have been rejected on the ground of delay or having been moved at the belated stage.

25. The reasoning given by the Trial Court that specific particulars or dates of meetings have not been given is ex-facie unsubstantiated. The list of documents, as extracted hereinabove, clearly shows that the petitioner has given requisite particulars so as to identify the relevant documents. It may further be noticed that subject application was filed along with an application under Section 315 Cr.P.C filed by the petitioner as well as the other co-accused. Applications under Section 315 Cr.P.C. of the accused were allowed and accused were permitted to examine themselves as witnesses.

26. Under Section 243 Cr.P.C. it is obligatory on the part of the Trial Court to issue process when the accused seeks summoning of any witness or production of any document in his defence. The only ground on which such an application can be refused is if the same was vexatious, delayed or would defeat the ends of justice.

27. In the instant case, no such findings have been returned by the Trial Court. On the contrary, the Trial Court has erred in not noticing that the petitioner had moved an application even at the stage when prosecution evidence was being led and was permitted to withdraw that application with liberty to move an appropriate application at the stage of defence evidence and that is exactly what the petitioner has done.

28. Further, the Trial Court has clearly erred in holding that it is within the discretion of the court, under Section 243 Cr.P.C. to decline such an application. On the contrary, as per section 243 Cr.P.C., it is obligatory on the part of the Trial Court to issue process, unless, it for the reasons to be recorded, holds that the application is vexatious, delayed or defeats the ends of justice.

29. Further reasoning given by the Trial Court, that the petitioner is seeking re-summoning of the witnesses, who have already been examined, is also not correct. Petitioner has not sought summoning of the witnesses, who have already been examined as prosecution witnesses for re-examination/cross-examination. Petitioner has merely sought production of the relevant record of the association from the custodian thereof. Admittedly, the record would come from an undisputed source. Petitioner has not sought re-summoning of any witness already examined, by name but has only sought production of the documents from the custodian thereof. Once the documents are produced, it would be open to the petitioner to prove the same in accordance with the Evidence Act.

30. Further reasoning given by the Trial Court, that the petitioner could have obtained copies of the documents under the Right to Information Act and then cross-examined the witnesses on the said documents, is also erroneous. Even if a person were to obtain copies of the documents under the Right to Information Act, said copies would not become primary evidence in terms of the Evidence Act and

a party would still need to summon the original record from the custodian thereof.

31. Since it is admittedly not the case of the respondent that the documents are not relevant or have no bearing on the just decision of the case, I am of the considered opinion that the Trial Court in the facts, as noticed hereinabove, has clearly erred in dismissing the application of the petitioner filed under Section 91 read with Section 311 Cr.P.C.

32. In view of the above, impugned order dated 03.12.2018 is set aside. Consequently, the application, filed by the petitioner, under Section 91 read with Section 311 Cr.P.C. dated 14.11.2018 is allowed,

 IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered on: 01st July, 2019

 CRL.REV.P. 1169/2018

SHYAM MANOHAR SAXENA Vs  CENTRAL BUREAU OF INVESTIGATION & ORS

CORAM:-

HON’BLE MR JUSTICE SANJEEV SACHDEVA

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When magistrate should not reject application of accused for calling of witness?

The learned JMFC was obviously in error in rejecting the said application. Sub-section 2 of section 243 of Criminal Procedure Code not only empowers but mandates the Magistrate to issue process for compelling the attendance of any witness for the purpose of examination or cross-examination or for production of any document or other thing on the application made by the accused, unless the Magistrate considers that such application should be refused on the ground that it was made for the purpose of vexation or delay or defeating the ends of justice, which. ground has to be recorded in writing. Such application can also be rejected under the proviso to the said sub-section if the accused had already cross-examined the said witness or had an opportunity of cross-examining him before entering on his defence. None of the exceptions provided in the said sub-section or in proviso thereto is obtaining in this case. It is the case of the accused that the Investigating Officer was not examined at all in this case and, therefore, the accused was entitled to apply to secure attendance of the Investigating Officer for the purpose of either his examination or cross-examination. The trial Court was, therefore, undoubtedly in error in rejecting this application. 

Equivalent Citation: 2000(2)MhLj106

IN THE HIGH COURT OF BOMBAY

Cri. Appln. No. 3269 of 1992

Decided On: 08.10.1999

 Kamlakar Atmaram Kadu and others
Vs.
 State of Maharashtra

Hon'ble Judges/Coram:
S.S. Parkar, J.

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