Supreme court: Witness Who Was Shown In Prosecution List But Not Examined By Prosecution Can Be Summoned As Defence Witness

The question which arises for consideration in this appeal is

as to whether a witness which has been shown in the

prosecution list but not examined on behalf of the

prosecution, can be permitted to be examined as a defence

witness. {Para 2}

3. In our considered view, both the Courts are wrong in declining

the request of the appellant, as factually, the witness sought

to be examined on the side of the defence has not been

examined by the prosecution. In other words, the prosecution

has consequentially chosen to discharge the said witness and,

therefore, he has not been put in the witness box to depose on

behalf of the prosecution.

4. In such view of the matter, there is no bar in the law for

examining the said witness as defence witness. 

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2024 (@ SLP(CRL.) No.10756/2023)

SUNDER LAL Vs THE STATE OF UTTAR PRADESH & ANR. 

Dated: 2nd FEBRUARY, 2024.

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What is the duty of revisional court while scrutinizing the trial court's order refusing to summon defence witnesses?

 We may, however, observe that when the trial Judge assigned reasons in support of his judgment, we are of the opinion that the High Court while exercising its revisional jurisdiction was required to assign reasons as to how and to what extent, if any, it intended to differ with the order of the learned trial Judge. Sub-section (2) of Section 243 confers discretionary jurisdiction upon the learned trial Judge to refuse to summon witnesses at the instance of the defence, inter alia, on the ground that it was made for the purpose of vexation or delay or for defeating the ends of justice. Such an order under Sub-section (2) of Section 243 Code of Criminal Procedure is required to be recorded by the learned Judge in writing. It was so done. Learned Special Judge, as noticed, hereinbefore, considered the matter at some depth. The High Court, therefore, while exercising its revisional jurisdiction Under Section 397 read with 401 of Code of Criminal Procedure was required to assign reasons in support of its conclusions as to how the reasons assigned by the learned trial judge were untenable and/or were otherwise insufficient. {Para 9}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 925 and 926 of 2006

Decided On: 14.12.2006

Central Bureau of Investigation Vs. Tuncay Alankus

Hon'ble Judges/Coram:

S.B. Sinha and Markandey Katju, JJ.

Citation: (2013) 9 SCC 611,MANU/SC/8908/2006.

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Supreme Court: Witness cited as prosecution witness but Not Examined by it Can Be Summoned As Defence Witness

 In our considered view, both the Courts are wrong in declining

the request of the appellant, as factually, the witness sought

to be examined on the side of the defence has not been

examined by the prosecution. In other words, the prosecution

has consequentially chosen to discharge the said witness and,

therefore, he has not been put in the witness box to depose on

behalf of the prosecution.{Para 3}

4. In such view of the matter, there is no bar in the law for

examining the said witness as defence witness. After all, it

is for the Trial Court to consider the evidentiary value of

the said witness while coming to its conclusion.

5. Accordingly, the impugned order passed by the High Court

confirming the order passed by the Trial Court stands set

aside.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2024

 (@ SLP(CRL.) No.10756/2023)

SUNDER LAL Vs THE STATE OF UTTAR PRADESH & ANR.

Dated: 2nd FEBRUARY, 2024.

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Questions and answers on law part 44

 Q 1:- Can prosecution witness be summoned as defense witness in a criminal case. An application is moved at 313 CrPC stage by the accused that he wants to summon prosecution witness although they were discharged by the court. Now accused wants those witness to be summoned in court. Can he do so?

Ans:- The prosecution witnesses may fall under two categories. (1) Witnesses cited by it but not examined (2) Witnesses examined by it. If the prosecution does not examine any witness cited by it, it is open to the defence to cite him and examine him as defence witness (Hukam Singh vs State of Rajasthan : (2000)7 SCC 490). But, then the defence will not be able to contradict him with his previous statement given to police in view of the bar under section 161(1) Cr.P.C.

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Whether the court can permit accused to call prosecution witness examined, cross examined and discharged as defence witness?

 The power to summon any person as a witness or recall and re-examine any person already examined is the discretionary power of the Court in case such evidence appears to it to be essential for a just decision of the case. Under Section 233 Cr.P.C. the accused can enter upon defence and he can apply for the issue of any process for compelling the attendance of any witness in his defence. The provisions of sub-section (3) of Section 233 cannot be understood as compelling the attendance of any prosecution witness examined, cross-examined and discharged to be juxtaposed as DWs. In the present case PW-8 and PW-9 were juxtaposed as DW-1 and DW-2. This situation is not one what was contemplated by sub-section 3 of Section 233 Cr.P.C.

When such frivolous and vexatious petitions are filed, a Judge is not powerless. He should have used his discretionary power and should have refused relief on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. In the present case, the witnesses were examined by the prosecution as eyewitnesses on 18.12.1990, cross-examined and discharged. Thereafter, an application under Section 311 Cr.P.C. was rejected. They were recalled purportedly in exercise of power under sub- section (3) of Section 233 Cr.P.C. and examined as DW-1 and DW-2 on behalf of the accused on 17.7.1995. This was clearly for the purpose of defeating the ends of justice, which is not permissible under the law.

Supreme Court of India

State Of Madhya Pradesh vs Badri Yadav & Anr on 31 March, 2006

Author: J H.K.Sema

Bench: H.K. Sema, Dr. Ar. Lakshmanan

Read full Judgment here: Click here

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Under which circumstances accused can examine prosecution witness as defence witness?

 The situation in a case where the prosecution cited two categories of witnesses to the occurrence, one consisting of persons closely related to the victim and the other consisting of witnesses who have no such relation, the Public Prosecutors duty to the court may require him to produce witnesses from the latter category also subject to his discretion to limit to one or two among them. But if the Public Prosecutor got reliable information that any one among that category would not support the prosecution version he is free to state in court about that fact and skip that witness being examined as a prosecution witness. It is open to the defence to cite him and examine him as defence witness. The decision in this regard has to be taken by the Public Prosecutor in a fair manner. He can interview the witness before hand to enable him to know well in advance the stand which that particular person would be adopting when examined as a witness in court.

Supreme Court of India

Hukam Singh And Ors vs State Of Rajasthan on 14 September, 2000

Author: Thomas

Bench: K.T. Thomas, J., R.P. Sethi, J.

Read full Judgment here: Click here

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Whether court witnesses or defence witnesses can be contradicted by reference to their police statement recorded U/S s 161 of CRPC?

  As regards the evidence of DW 1 it was wrong to have allowed him to be cross-examined by the prosecution with reference to the statement which he had given to the police. Under Section 162, Cr. PC only witnesses on behalf of the prosecution could be contradicted by reference to their statements made to the police, and not court witnesses or defence witnesses. 

Supreme Court of India

Mrs. Shakila Khader And Ors. vs Nausheer Cama And Ors. on 10 March, 1975

Equivalent citations: AIR 1975 SC 1324, (1975) 4 SCC 122, 1975 (7) UJ 393 SC

Author: A Alagiriswami

Bench: A Alagiriswami, N Untwalia

Read full Judgment here: Click here

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How to appreciate evidence of defence witness and court witness?

In this regard, it may also be noted that the Supreme Court in Dudh Nath Pandey v. State of Uttar Pradesh reported as (1981) 2 SCC 166, opined that Courts should avoid the error of attributing motives to defence witnesses merely because they are examined by the defence. Defence witnesses are entitled to equal treatment with those of the prosecution and Courts ought to overcome their traditional, instinctive disbelief in defence witnesses. To a similar extent, in State of U.P. v. Babu Ram reported as (2000) 4 SCC 515, the Supreme Court has observed as under:

“23. Depositions of witnesses, whether they are examined on the prosecution side or defence side or as court witnesses, are oral evidence in the case and hence the scrutiny thereof shall be without any predilection or bias. No witness is entitled to get better treatment merely because he was examined as a prosecution witness or even as a court witness. It is judicial scrutiny which is warranted in respect of the depositions of all witnesses for which different yardsticks cannot be prescribed as for those different categories of witnesses.”

17. Later, in Munshi Prasad and Others v. State of Bihar reported as (2002) 1 SCC 351, the Supreme Court made the following observation on the appreciation of evidence of defence witnesses:

“3. …we wish to clarify that the evidence tendered by the defence witnesses cannot always be termed to be a tainted one by reason of the factum of the witnesses being examined by the defence. The defence witnesses are entitled to equal respect and treatment as that of the prosecution. The issue of credibility and trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution – a lapse on the part of the defence witnesses cannot be differentiated and be treated differently than that of the prosecutors’ witnesses.”

 IN THE HIGH COURT OF DELHI AT NEW DELHI

CORAM: HON’BLE MR. JUSTICE MANOJ KUMAR OHRI
CRL.A. 633/2020 

SONU v. THE STATE (GOVT. OF NCT), DELHI

Dated: 06.09.2021

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Whether court can permit calling of prosecution witness as defence witness?

The judgment of the Supreme Court very clearly indicates that the provisions under Section 233, Cr.P.C. should not be permitted for the defence to move an application for calling upon a prosecution witness who has been examined and cross-examined at one point of time and later on has to be called as a defence witness to give entirely contradictory statement from what has already been given earlier as a prosecution witness.

14. If we peruse the provisions under Section 233, Cr.P.C., it clearly gives an indication that the said provision is to be attracted after the prosecution evidence is closed and that the Court has reached to the conclusion that prima facie, there is sufficient material against the accused persons for proceeding further with the case and at that time the accused persons can bring his defence witness and adduce any evidence in support of their defence. It further envisages that under Section 233, Cr.P.C. if the accused persons take for issuance of any process for compelling the attendance of any witness or 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. This itself clearly indicates that it is not a matter of right that the accused persons can initiate process for compelling any prosecution witnesses to be adduced as defence witness just to make a statement in contrast what they have earlier made. On the contrary, it refers to the fact that in a given facts and circumstances of the case the Court below can reject the request of the accused persons seeking for calling upon a person as a witness in case if there are justified reasons.

15. In the instant case, the justified reasons is explicit from the record itself that of the prosecutrix whom the defence intends to call as a defence witness has already been examined as a prosecution witness and has also been cross-examined elaborately by the defence and only because subsequently the prosecutrix has changed her mind and filed an affidavit, she cannot be permitted to be called as a defence witness in the same case.

IN THE HIGH COURT OF CHHATTISGARH

Criminal Revision No. 563 of 2016

Decided On: 05.07.2016

Gaurav Sonkar and Ors.V  State of Chhattisgarh

Hon'ble Judges/Coram:

P. Sam Koshy, J.

Citation: 2017 CRLJ253

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Whether accused can call Chairman of complainant - Society as defence witness?

 The Chairman who is being summoned as a witness for the defence, has not been examined as a prosecution witness. Merely because he happened to be the Chairman of the complainant - Society, and is likely to be disposed in favour of the Society, it does not mean that he cannot be called as a witness for the defence. The reasoning of the learned Single Judge, namely, that the 'same person cannot be examined as a witness for the prosecution as well as for the defence', cannot be applied in the present case.

Bombay High Court

Kalika Nagari Sahakari ... vs Ashok Bansilal Bora on 27 January, 2014

Bench: A.M. Thipsay

Citation; 2015 CRLJ(NOC)480 BOM

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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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Whether public prosecutor can interview witness before trial?

Cr.P.C. S.231: Public Prosecutor can interview the witness before hand: The situation in a case where the prosecution cited categories of witnesses of the occurrence, one consisting of persons closely related to the victim and the other consisting of witnesses who have no such relation, the public prosecutor’s duty to the Court may require him to produce witnesses from the later category, also subject to his discretion to limit to one or two among them. But if the public prosecutor got reliable information that any one among that category would not support the prosecution version he is free to state in court about that fact and skip the witness from being examined as a prosecution witness. It is open to the defence to cite him and examine him as a defence witness. The decision in this regard has to be taken by the Public Prosecutor in a fair manner. He can interview the witness before hand to enable him to know well in advance the stand which that particular person would be adopting when examined as a witness in Court.

Supreme Court of India

Banti @ Guddu vs State Of Madhya Pradesh on 4 November, 2003

Bench: Doraiswamy Raju, Arijit Pasayat

Citation;AIR 2004 SC 261.

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