In so far as the Medical Officers who were sought to be
summoned for verifying the intimation registers, the
learned Session Judge was of the view that their
summoning will only enure to protract the trial. It will be
relevant in this context to refer to a judgment rendered by
a Division Bench of this Court in Radhanandan V State
of Kerala [1990 (1) KLT 516] wherein it was held as
follows in paragraph No 2 of the judgment :-
Every accused is entitled to a fair trial,
which includes opportunity for adducing
his own evidence also. That is his right if
he is not acquitted under S.232 on the
ground that the judge considers that
there is no evidence that he committed
the offence. In such a situation, it is
mandatory that he should be called upon
to enter on his defence and permitted to
adduce oral and documentary evidence of
his choice. On his application, the court
has the duty to issue process and secure
witnesses, documents or things. The
choice in this respect is solely on him.
Calling the accused to enter on his
defence is not an empty formality. Its
omission will be fatal to the prosecution
and the conviction will be bad. The
application of the accused for issue of
process for compelling the attendance of
any witness or the production of any
document or thing cannot be rejected by
the court as unnecessary. The discretion
of the court to reject such an application
under S.233(3) is only on the ground
that it is made for the purpose of
vexation or delay or for defeating the
ends of justice. Subject to those
restrictions, the accused is having the
unfettered right to have any witness,
document or thing summoned. Entering
on defence and adducing evidence marks
a special stage in and is an essential part
of a criminal trial. If that chance is
denied, it cannot be said to be fair trial.
The restrictions on the grounds of
vexation, delay or defeating the ends of
justice are not available in this case.
16.As held in Radhanandan (supra) the accused has the
right to adduce evidence which may be relevant for proper
appreciation of the prosecution evidence and to
substantiate his defence. Though it is open to the Session
Judge to refuse to summon a defence witness on the
ground that the application to summon him has been
made for the purpose of vexation or delay or for defeating
the ends of justice, after having gone through the facts of
the instant case, it does not appear to me that the court
below was justified in denying an opportunity to the
petitioner to advance his case. It is by now settled that
the right of the accused is statutory in nature and the
provisions of section 233 of the Code which provides an
opportunity to the accused to adduce evidence in support
of his defence is mandatory. When such an opportunity is
not granted, the conviction itself can become vitiated.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE RAJA VIJAYARAGHAVAN V
14TH DAY OF OCTOBER 2016
Crl.MC.No. 6069 of 2016
SHIJU.P.T. Vs STATE OF KERALA,
Citation: 2017 CRLJ(NOC)93 Ker
Print Page
summoned for verifying the intimation registers, the
learned Session Judge was of the view that their
summoning will only enure to protract the trial. It will be
relevant in this context to refer to a judgment rendered by
a Division Bench of this Court in Radhanandan V State
of Kerala [1990 (1) KLT 516] wherein it was held as
follows in paragraph No 2 of the judgment :-
Every accused is entitled to a fair trial,
which includes opportunity for adducing
his own evidence also. That is his right if
he is not acquitted under S.232 on the
ground that the judge considers that
there is no evidence that he committed
the offence. In such a situation, it is
mandatory that he should be called upon
to enter on his defence and permitted to
adduce oral and documentary evidence of
his choice. On his application, the court
has the duty to issue process and secure
witnesses, documents or things. The
choice in this respect is solely on him.
Calling the accused to enter on his
defence is not an empty formality. Its
omission will be fatal to the prosecution
and the conviction will be bad. The
application of the accused for issue of
process for compelling the attendance of
any witness or the production of any
document or thing cannot be rejected by
the court as unnecessary. The discretion
of the court to reject such an application
under S.233(3) is only on the ground
that it is made for the purpose of
vexation or delay or for defeating the
ends of justice. Subject to those
restrictions, the accused is having the
unfettered right to have any witness,
document or thing summoned. Entering
on defence and adducing evidence marks
a special stage in and is an essential part
of a criminal trial. If that chance is
denied, it cannot be said to be fair trial.
The restrictions on the grounds of
vexation, delay or defeating the ends of
justice are not available in this case.
16.As held in Radhanandan (supra) the accused has the
right to adduce evidence which may be relevant for proper
appreciation of the prosecution evidence and to
substantiate his defence. Though it is open to the Session
Judge to refuse to summon a defence witness on the
ground that the application to summon him has been
made for the purpose of vexation or delay or for defeating
the ends of justice, after having gone through the facts of
the instant case, it does not appear to me that the court
below was justified in denying an opportunity to the
petitioner to advance his case. It is by now settled that
the right of the accused is statutory in nature and the
provisions of section 233 of the Code which provides an
opportunity to the accused to adduce evidence in support
of his defence is mandatory. When such an opportunity is
not granted, the conviction itself can become vitiated.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE RAJA VIJAYARAGHAVAN V
14TH DAY OF OCTOBER 2016
Crl.MC.No. 6069 of 2016
SHIJU.P.T. Vs STATE OF KERALA,
Citation: 2017 CRLJ(NOC)93 Ker
