T N JANARDHANAN PILIAL Vs. STATE

JUDGEMENT

(1.) In this appeal against conviction, I do not propose to go into the facts or evidence because I am satisfied that the Enquiry Commissioner and Special Judge acted irregularly in shutting out defence evidence.

(2.) After the prosecution evidence was over, the appellant was called upon to enter on his defence. He filed a schedule of three witnesses. They were summoned and all of them appeared on 22-9-1990. Two of them are PWs. 5 and 8, who were already cross examined. The appellant wanted to further cross examine PW 5 for some purpose, including confrontation with Ext. P18. On the ground that the appellant could have cross examined the witness with reference to Ext. P18 on the previous opportunity, Special Judge disallowed further examination and discharged the witness. The purpose of further examination of PW 8 was to prove some documents. Since these documents were not relied on by the prosecution, that witness was also discharged without permitting examination.

(3.) Right of the accused to adduce evidence of his choice is part of fair trial. Whether it be sessions trial, trial of a summons case, warrant case or summary trial, that right is there when it comes to a stage of adducing defence evidence. It is the right of the accused, at the appropriate time, to be called upon to enter his defence. So far as sessions trials are concerned, there is S.233 and in trial of warrant cases, there is S.243 of the Code of Criminal Procedure. It is true that there is slight difference between S.233 and 243. The words "for the purpose of examination or cross examination" appearing in S.243 are absent in S.233. For that reason, the proviso to S.243 is also absent in S.233. That does not mean that in a sessions trial, at the stage of defence evidence, accused is not entitled to recall a prosecution witness, who was already examined either for the purpose of cross examination or for being examined as a defence witness. The omission in S.233 of the above words appearing in S.243 is made good by S.233(1) wherein the accused is given the right to adduce "any evidence he may have in support thereof." So also, S.233(3) says that if the accused applies for the issue of process for compelling the attendance of 'any witness', the Judge shall issue such process, the right is not a mere formality, but it is an essential part of a criminal trial. Every opportunity must be given to the accused to adduce evidence in his defence. It is for the accused and not for the judge to say what evidence or what amount of evidence he thinks of proper to place on record in his defence.