Home » News » Supreme Court Ruling: Defence Can Summon Unexamined Prosecution Witnesses

In a recent ruling, the Supreme Court of India has made a significant decision in the case of Sunder Lal v. The State of Uttar Pradesh & Anr. The court has ruled that a witness, who was listed in the prosecution but not examined, can be summoned as a defence witness.

The case revolves around Sunder Lal, whose wife committed suicide by consuming a poisonous substance. Following her death, the deceased’s relatives complained Sunder Lal and his family. They alleged that the family had been harassing the deceased over unmet dowry demands and had cremated her body without informing them.

The charges against Sunder Lal and his family were filed under Sections 304B and 498A of the Indian Penal Code, 1860 (IPC) and Sections 3 and 4 of the Dowry Prohibition Act, 1961. Pradeep, the brother of the deceased, was listed as a prosecution witness. However, he was discharged by the prosecution without being examined during the trial.

After the prosecution evidence was closed and the accused’s statement was recorded under Section 313 of the Criminal Procedure Code, 1973 (CrPC), Sunder Lal applied to summon Pradeep under Section 233 of CrPC. Both the Trial Court and the High Court of Allahabad dismissed Sunder Lal’s application. This led Sunder Lal to appeal to the Supreme Court, which allowed his appeal.

The Bench of Justices MM Sundresh and SVN Bhatti observed that both the lower courts were incorrect in declining Sunder Lal’s request. They noted that the witness sought to be examined on the side of the defence had not been examined by the prosecution. The prosecution had chosen to discharge the said witness, and therefore, he had not been put in the witness box to depose on behalf of the prosecution. In light of this, the court ruled that there is no legal bar to examining the said witness as a defence witness. Sunder Lal was permitted to examine the prosecution witness as a defence witness.

Section 313 of CrPC, which deals with the power to examine the accused, played a crucial role in this case. This section allows the court to question the accused at any stage of the inquiry or trial, enabling the accused to explain any circumstances appearing in the evidence against him personally.

In the case of Rafiq Ahammad @ Rafi v. State of Uttar Pradesh (2011), the Supreme Court held that the statement under Section 313 of CrPC cannot be the sole basis for the conviction of the accused. However, it can be a relevant consideration for the courts to examine, particularly when the prosecution has established the chain of events.

Section 233 of the Criminal Procedure Code (CrPC) is found under Chapter XVIII, titled ‘Trial Before a Court of Session’. This section pertains to the defence entering upon their case. The same provision is covered under Section 256 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS).

The section stipulates the following:

  1. If the accused is not acquitted under Section 232, they are called upon to enter on their defence and present any evidence they may have in support thereof.
  2. If the accused submits any written statement, the Judge is required to file it with the record.
  3. Suppose the accused applies for the issuance of any process to compel the attendance of any witness or the production of any document or thing. In that case, the Judge shall issue such a process. However, the Judge may refuse the application for reasons to be recorded if it is made for vexation, delay, or defeating the ends of justice.

This provision is a crucial part of a session trial. It comes into play when the prosecution’s evidence is complete, and the accused is allowed to produce evidence in their defence. This ruling underscores the importance of a fair trial, where both sides are given equal opportunity to present their case. It also highlights the court’s role in ensuring that the process is not misused for vexation, delay, or to defeat the ends of justice. This ruling is a testament to the robustness and fairness of the Indian judicial system.

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