Case Note & Summary
The petitioners, original accused in Sessions Case No. 11/2001 pending before the Additional Sessions Judge, Mapusa, were facing trial under Sections 143, 147, 148, 427, 327, 326 and 307 read with Section 149 of the Indian Penal Code. After their statements under Section 313 CrPC were recorded on 28.7.2004, they disclosed their intention to examine defence witnesses and submitted a list of 24 witnesses. The trial court initially allowed the examination and issued summons to four witnesses, resulting in the examination of Clayton Fernandes and Police Officer Rane. However, two witnesses, Parshuram Gharde and Salim Ramjan Nadaf, could not be served, and the petitioners provided new addresses requesting fresh summons. This application was dismissed on 6.4.2005. Additionally, a further application for summoning other witnesses from the list was dismissed on 11.4.2005. The petitioners challenged both orders by way of a criminal writ petition under Articles 226 and 227 of the Constitution. The High Court held that the right to examine defence witnesses is a statutory right under Section 243 CrPC and a facet of the right to a fair trial under Article 21. The trial court's rejection of the applications without valid reasons was arbitrary and violative of natural justice. The court set aside the impugned orders and directed the trial court to issue summons to the remaining defence witnesses, subject to the petitioners bearing the process fees and ensuring no delay.
Headnote
A) Criminal Procedure - Right to Examine Defence Witnesses - Section 243 CrPC - The accused has a statutory right to examine defence witnesses under Section 243 CrPC, and the court must issue summons unless the application is mala fide or intended to delay trial. Rejection of summons without valid reason violates Article 21. (Paras 4-6)
B) Constitutional Law - Right to Fair Trial - Article 21 of the Constitution of India - The right to a fair trial under Article 21 includes the opportunity to lead defence evidence. Denial of summons to defence witnesses without justification infringes this fundamental right. (Paras 4-6)
Issue of Consideration
Whether the Additional Sessions Judge erred in rejecting the petitioners' application for issuance of summons to defence witnesses, thereby violating their right to a fair trial under Article 21 of the Constitution and Section 243 of the Code of Criminal Procedure, 1973.
Final Decision
The High Court allowed the petition, set aside the impugned orders dated 6.4.2005 and 11.4.2005, and directed the Additional Sessions Judge to issue summons to the remaining defence witnesses, subject to the petitioners bearing the process fees and ensuring no delay in the trial.
Law Points
- Right to fair trial under Article 21 includes right to examine defence witnesses
- Section 243 CrPC confers right on accused to summon defence witnesses
- Rejection of summons without valid reason is violative of natural justice
Case Details
2005 LawText (BOM) (06) 36
Criminal Writ Petition No. 12 of 2005
Shri S.M. Walwaikar for Petitioners, Mrs. W. Coutinho, Addl. Public Prosecutor for State/Respondent
Miss Anita Keshav Parab and Shri Rupesh Keshav Parab
The State through Public Prosecutor, Ajit @ Kiru Sadashiv Parab, Keshav @ Sadashiv Parab, Sudesh Keshav Parab, Narayan Gaonkar
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Nature of Litigation
Criminal writ petition challenging orders of Additional Sessions Judge rejecting applications for issuance of summons to defence witnesses.
Remedy Sought
Petitioners sought setting aside of orders dated 6.4.2005 and 11.4.2005 and direction to issue summons to defence witnesses.
Filing Reason
The trial court rejected applications for fresh summons to two witnesses who could not be served and for summoning other listed witnesses, allegedly violating the petitioners' right to examine defence witnesses.
Previous Decisions
The Additional Sessions Judge had initially allowed examination of defence witnesses and issued summons to four witnesses; two witnesses were examined, two could not be served; subsequent applications for fresh summons and summoning other witnesses were dismissed on 6.4.2005 and 11.4.2005 respectively.
Issues
Whether the rejection of the petitioners' application for issuance of summons to defence witnesses violated their right to a fair trial under Article 21 and Section 243 CrPC.
Submissions/Arguments
Petitioners argued that they have a right to examine defence witnesses and that denial of summons violates Article 21 and natural justice.
State opposed the petition, but the judgment does not detail their arguments.
Ratio Decidendi
The right of an accused to examine defence witnesses is a statutory right under Section 243 CrPC and a fundamental facet of the right to a fair trial under Article 21 of the Constitution. The trial court cannot reject an application for summoning defence witnesses without valid reasons such as mala fides or intent to delay; such rejection is arbitrary and violative of natural justice.
Judgment Excerpts
It is submitted by the learned counsel appearing on behalf of the petitioners that it is the petitioners' right to examine defence witnesses.
The petitioners' right to a fair trial is denied by not permitting them to examine their defence witnesses and therefore the impugned order is violative of Article 21 of the Constitution and is in breach of the principle of natural justice.
Procedural History
The petitioners are original accused in Sessions Case No. 11/2001 pending before the Additional Sessions Judge, Mapusa. After recording of statements under Section 313 CrPC on 28.7.2004, they applied to examine defence witnesses. The trial court allowed the application and issued summons to four witnesses; two were examined, two could not be served. The petitioners then applied for fresh summons for the unserved witnesses and for summoning other listed witnesses. The trial court dismissed both applications on 6.4.2005 and 11.4.2005 respectively. The petitioners challenged these orders by filing Criminal Writ Petition No. 12 of 2005 before the High Court of Bombay at Goa.
Acts & Sections
- Constitution of India: Articles 21, 226, 227
- Code of Criminal Procedure, 1973: Section 243, 313
- Indian Penal Code, 1860: 143, 147, 148, 427, 327, 326, 307, 149
