S.243(2) CrPC | Accused Can't Summon Prosecution Witness Who He Had Cross-Examined Unless Magistrate Satisfied It Is Essential: Allahabad High Court


Chambers of Ishaan Garg

Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054

+91 8851742417, +91 8800386163

The Allahabad High Court has held that under Section 243(2) of the CrPC, the Magistrate is under an obligation to not compel re-appearances of prosecution witnesses already examined by the accused unless the Magistrate is satisfied that it is necessary to meet the ends of justice.

While dealing with the order of the Trial Court rejecting the application for summoning defence witnesses, Justice Jyotsna Sharma held that the witnesses who have already put in appearance at the time of prosecution evidence and have been cross-examined by the accused should not be summoned again unless the Magistrate is satisfied that summoning such witnesses is essential for meeting the ends of justice.

The Court further observed that powers under Article 227 of the Constitution of India are to be sparingly used. The Court observed,

“Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected.”

Factual Background

Petitioner was posted as Sub-Inspector of police when he lodged an FIR under Sections 307 and 392 IPC and Section 3 of FEMA Act against one Durga Prasad Agarwal and few others. However, in the chargesheet filed, petitioner was charged under Sections 392, 218, 467, 468, 120-B IPC on grounds that Sub-Inspector and his unknown associates conspired to create a fake incident of loot.

In the trial proceedings, after the prosecution evidence was closed, the petitioner moved applications requesting the Court to summon the certain witness which included police officers to meet the ends of justice. Initially, the Trial Court rejected the applications. A revision was filed by the petitioner which was partly allowed the matter was remanded back to the Trial Court. However, the order of the revisional court was challenged before the High Court.

During the pendency of the case before the High Court, Trial Court proceeded to allow the applications filed by the petitioner. However, the order was set aside by the revisional court with a direction to the Trial Court to pass a fresh reasoned order. Subsequently, the Trial Court rejected the application for summoning the defence witnesses.

Challenging the order of the Trial Court, petitioner contended that the no good reasons were cited by the Court below while rejecting his application. It was also argued that denial of the right to adduce evidence in support of defence is denial of fair trial.

High Court Verdict

The Court observed that the primary controversy revolved around summoning retired police officers as defence witnesses which was rejected by the Trial Court on grounds of vexation or delay or for defeating the ends of justice.

The Court observed that Section 243 CrPC (Evidence of Defence) imposes obligation on the Magistrate not to compel the attendance of any such witnesses unless it is satisfied that it is necessary for the ends of justice.

The Court observed that there are two categories of witnesses under Section 243(2): one, fresh witnesses that the defence wants to produce, and second, those witnesses who had already been produced during prosecution evidence but the defence wants to further examine/cross-examine.

“The law provides that in the first case ordinarily the Magistrate may issue process unless he considered 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. In the second case (i.e., when a person who has already been cross-examined by the defence or the defence had an opportunity of cross-examining him), the attendance of such witness shall not be compelled unless the Magistrate is satisfied that it is necessary for the ends of justice. The first part of section 243(2) Cr.P.C. has been worded in a positive manner while the proviso to section 243(2) Cr.P.C which applies in a latter case, has been worded giving only a little scope to the defence.”

The Court held that the petitioner had failed to demonstrate the need for examination of the police officers for the benefit of his case. The Court held that there were merely statements made in the application praying for summoning of the police officer regarding nexus between them and the investigating agency. However, the petitioner had failed to show how “their evidence may prove helpful to disprove the prosecution case or to prove his innocence or even to create cracks or doubts in the prosecution story.”

Elaborating on the need to exercise jurisdiction under Article 227 of the Constitution of India sparingly, the Court observed that the accused had made “long winding statements and descriptions all weaved together to give a false impression of having a good case, but a discerning judicial eye can see through the web created by a legal mind.”

The Court held that though the arguments made by the petitioner may seem appealing on the outside, the lacked substance. Accordingly, the petition under Article 227 of the Constitution of India was dismissed.

Case Title: Diwakar Singh vs. State of UP [MATTERS UNDER ARTICLE 227 No. - 5914 of 2023] (2024 All HC)