Source: Supreme Court

Why in News?

Recently, the Supreme Court in the matter of Sunder Lal v. The State of Uttar Pradesh & Anr., has held that a witness can be summoned as a defence witness who was shown in the Prosecution list but not examined by prosecution.

What was the Background of Sunder Lal v. The State of Uttar Pradesh & Anr. Case?

• In this case, the appellant was married, and his wife(deceased) consumed a poisonous substance of her own accord and died by suicide.
• Thereafter, a complaint was filed by the deceased's relatives, alleging that the appellant and his relatives used to harass the deceased over non-fulfillment of demand for dowry and cremated her body without informing the complainant-relatives.
• The charge-sheet was filed under Sections 304B and 498A of the Indian Penal Code, 1860 (IPC) and Sections 3 and 4 of the Dowry Prohibition Act, 1961.
• The deceased's brother Pradeep was mentioned as a prosecution witness.
• However, during the trial, Pradeep was discharged by the prosecution without being examined.
• After prosecution evidence was closed and statement of the accused under Section 313 of the Criminal Procedure Code, 1973 (CrPC) was recorded.
• The appellant moved an application under Section 233 of CrPC seeking to summon Pradeep.
• The Trial Court dismissed the appellant’s application and even the High Court of Allahabad dismissed the appellant’s prayer.
• Thereafter, the appellant filed an appeal before the Supreme Court which was later allowed by the Court.

What were the Court’s Observations?

• The Bench of Justices MM Sundresh and SVN Bhatti observed that both the Courts are wrong in declining the request of the appellant, as factually, the witness sought to be examined on the side of the defence has not been examined by the prosecution.
• It was also stated that the prosecution has consequentially chosen to discharge the said witness and, therefore, he has not been put in the witness box to depose on behalf of the prosecution. In such view of the matter, there is no bar in the law for examining the said witness as defence witness. The appellant is permitted to examine the prosecution witness as defence witness.

What are the Relevant Legal Provisions Involved in it?

Section 313 of CrPC

About:

• Section 313 of CrPC deals with the power to examine the accused. It states that—

(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court—

(a) May at any stage, without previously warning the accused put such questions to him as the Court considers necessary;

(b) Shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case.

Provided that in a summons case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).

(2) No oath shall be administered to the accused when he is examined under sub-section (1).

(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.

(4) The answers given by the accused may be taken into consideration in such inquiry or trial and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.

(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.

Case Law

• In Rafiq Ahammad @ Rafi v. State of Uttar Pradesh (2011), the Supreme Court held that the statement u/sec.313 of CrPC cannot be the sole basis for conviction of the accused but certainly it can be a relevant consideration for the Courts to examine, particularly when the prosecution has otherwise been able to establish the chain of events.

Section 233 of CrPC

About:

• Section of 233 CrPC finds place under Chapter XVIII titled as 'trial before a court of session'.
• This section deals with entering upon defence whereas the same provision has been covered under Section 256 of Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS).
• It states that-

(1) Where the accused is not acquitted under Section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof.

(2) If the accused puts in any written statement, the Judge shall file it with the record.

(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, 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.

• This provision is an essential part of session trial and is applicable when the prosecution evidence is complete, and the accused is given an opportunity to produce the evidence in its defence.

Case Law

• In H. Kala Singh v. State of Meghalaya (2008), it was held that the purpose of Section 233 of CrPC is to ensure that the accused is given an adequate opportunity to defend themselves effectively and to ensure a fair trial. It allows the accused to produce any evidence or witnesses in their defence.