Case Note & Summary
The petitioner, Nilesh Jap Daru, is facing trial under Section 302 of the Indian Penal Code before the Sessions Court at Mumbai in Sessions Case No.272 of 1996. After the conclusion of prosecution evidence, the petitioner moved an application for issuance of summons to various defence witnesses, which was allowed by the Sessions Court. However, two of the witnesses could not be served due to circumstances beyond the petitioner's control, and some witnesses who were served could not appear on the hearing date and requested alternative dates. On 13-4-2005, the learned Sessions Judge, without applying mind to these difficulties, straightaway fixed the matter for final arguments, thereby denying the petitioner the opportunity to examine his defence witnesses. The petitioner challenged this order by way of a writ petition before the Bombay High Court. The High Court held that such an exercise is not permissible and that the accused is entitled to lead whatever evidence he desires in his defence. The court cannot deny this opportunity merely because witnesses are not present due to circumstances beyond the accused's control. The High Court quashed the impugned order and directed the Sessions Court to grant reasonable opportunity to the petitioner to examine his defence witnesses, including by issuing fresh summons or warrants if necessary, and to proceed with the trial thereafter.
Headnote
A) Criminal Procedure - Right of Accused to Lead Defence Evidence - Section 233 CrPC - The accused is entitled to lead whatever evidence he desires in his defence and cannot be denied such opportunity merely because witnesses are not present due to circumstances beyond his control - The court must apply its mind to difficulties expressed by the accused and grant reasonable adjournments (Paras 2-3).
Issue of Consideration
Whether the Sessions Court was justified in closing the defence evidence and fixing the matter for final arguments without affording proper opportunity to the accused to examine his witnesses.
Final Decision
The impugned order dated 13-4-2005 passed by the learned Sessions Judge, Mumbai in Sessions Case No.272 of 1996 is quashed and set aside. The learned Sessions Judge is directed to grant reasonable opportunity to the petitioner to examine his defence witnesses, including by issuing fresh summons or warrants if necessary, and to proceed with the trial thereafter. Rule is made absolute in the above terms.
Law Points
- Right of accused to lead defence evidence
- duty of court to provide reasonable opportunity
- non-compliance with natural justice
Case Details
2005 LawText (BOM) (04) 100
Criminal Writ Petition No.1199 of 2005
R.M.S. Khandeparkar, P.V. Kakade
Ms Maharukh Adenwalla with Dr. Y.M. Chaudhry for the Petitioner, Shri B.H. Mehta, Addl. Public Prosecutor for the Respondent-State
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Nature of Litigation
Criminal writ petition challenging the order of Sessions Court closing defence evidence and fixing matter for final arguments.
Remedy Sought
Quashing of the order dated 13-4-2005 and direction to the Sessions Court to allow the petitioner to examine his defence witnesses.
Filing Reason
The Sessions Court without applying mind to the difficulties of the petitioner in securing presence of defence witnesses, fixed the matter for final arguments, thereby denying the petitioner the opportunity to lead defence evidence.
Previous Decisions
The Sessions Court had earlier allowed the petitioner's application for summons to defence witnesses. On 13-4-2005, the Sessions Court passed the impugned order fixing the matter for final arguments.
Issues
Whether the Sessions Court was justified in closing the defence evidence and fixing the matter for final arguments without affording proper opportunity to the accused to examine his witnesses.
Submissions/Arguments
The petitioner argued that the Sessions Court without application of mind to the difficulties expressed by the petitioner in securing the presence of witnesses, straightaway fixed the matter for final arguments, thereby denying the petitioner the opportunity to put forth his defence.
The respondent-State did not oppose the petition.
Ratio Decidendi
The accused is entitled to lead whatever evidence he desires in his defence and cannot be denied such opportunity merely because witnesses are not present due to circumstances beyond his control. The court must apply its mind to the difficulties expressed by the accused and grant reasonable adjournments to enable the accused to examine his defence witnesses.
Judgment Excerpts
Such an exercise is not permissible and the accused is entitled to lead whatever evidence he desires to place before the learned Sessions Judge in his defence. He cannot be denied the said opportunity merely because the witnesses on account of circumstances beyond his control could not be served with the summons or could not appear on the date of hearing.
Procedural History
The petitioner is facing trial under Section 302 IPC in Sessions Case No.272 of 1996 before the Sessions Court at Mumbai. After prosecution evidence, the petitioner moved for summons to defence witnesses, which was allowed. On 13-4-2005, the Sessions Court passed the impugned order fixing the matter for final arguments without affording opportunity to examine defence witnesses. The petitioner filed the present writ petition challenging that order.
Acts & Sections
- Indian Penal Code, 1860: 302
- Code of Criminal Procedure, 1973: 233
