Source: Allahabad High Court

Why in News?

Recently, the Allahabad High Court in the matter of Diwakar Singh v. State of U.P, has held that as per the provisions of Section 243(2) of the Criminal Procedure Code, 1973 (CrPC), the Magistrate cannot compel re-appearances of prosecution witnesses already examined unless the Magistrate is satisfied that it is necessary to meet the ends of justice.

What is the Background of Diwakar Singh v. State of U.P Case?

• The petitioner was posted as Sub-Inspector of police, and he lodged an First Information Report (FIR) under the provisions of Indian Penal Code, 1860 (IPC).
• The police investigated the matter and filed a chargesheet, not against the persons named therein but against the petitioner stating therein that the petitioner with his unknown associates hatched a conspiracy showing a fake incident of loot and he also prepared false papers to show a false incident as genuine one.
• 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 and the trial court dismissed both the applications.
• Thereafter, a criminal revision was preferred by the petitioner which was partly allowed.
• The order revisional court was challenged before the High Court, which is still pending.
• 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.
• Thereafter a petition under Article 227 of the Constitution of India, 1950 (COI) has been filed by the petitioner before the High Court with a prayer to set aside the order by which applications were rejected, with a further prayer to issue an appropriate direction to the court. This petition was later dismissed.

What were the Court’s Observations?

• Justice Jyotsna Sharma observed that 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 has already been cross-examined by the defence), the attendance of such a witness shall not be compelled unless the Magistrate is satisfied that it is necessary for the ends of justice.
• The Court further concluded that Section 243(2) of CrPC imposes an 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.

What are the Relevant Legal Provisions Involved in it?

Section 243 of CrPC

• Section 243 of CrPC deals with the evidence for defence whereas the same provision has been covered under Section 266 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS).
• Section 243(1) states that the accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record.
• Section 243(2) states that if the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers 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 and such ground shall be recorded by him in writing.
• Section 243(2) deals with two categories of witnesses.
  • Fresh witnesses that the defence wants to produce.
  • Those witnesses who had already been produced during prosecution evidence but the defence wants to further examine/cross-examine.
• Section 243(3) states that the Magistrate may, before summoning any witness on an application under sub-section (2), require that the reasonable expenses incurred by the witness in attending for the purposes of the trial be deposited in Court.

Article 227 of the COI

• This Article deals with the power of superintendence over all courts by the High Court. It states that -

(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.

(2) Without prejudice to the generality of the foregoing provision, the High Court may—

(a) call for returns from such courts;

(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts;

(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.

(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practicing therein.

(4) Nothing in this article shall be deemed to confer on a High Court power of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.