The Tripura High Court in the case of Sri Milan Paul vs Smt. Rikta Paul (Crl. Rev. P No.43 of 2021) upheld that magistrate can refuse the request to issue summons to the witness on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice
Facts of the case : Smt. Rikta Paul Sarka lodged a written complaint in the Court of the Chief Judicial Magistrate at Belonia alleging that accused Milan Paul, a businessman, had taken a loan of a sum of rupees ten lakhs from the husband of the complainant in July, 2013. In order to repay the loan accused Milan Paul had issued a on 04.09.2015 drawn on State Bank of India in the name of said Sankar Sarkar, husband of the complainant. Her husband had presented the cheque to SBI at the Belonia branch for encashment on 15.09.2015. But the cheque was returned unpaid for the reason that the amount available in the account of the accused was not sufficient for encashment of the cheque. Complainant’s husband sent statutory notice to the accused through his lawyer demanding payment of the amount of the cheque which was dishonored by the bank. Despite receiving notice, the accused neither replied nor paid the money.
The trial Court passed the impugned order on 14.06.2019 in favor of the complainant and refusing to allow further opportunity to the accused for adducing defense witness. Petitioner had filed this criminal revision petition mainly on the ground that the trial Court by refusing to issue summons to the witnesses of the accused petitioner (DW) had denied the constitutional right of the accused to defend himself in a criminal proceeding.
Counsel appearing for the complainant on the other hand defended the impugned order by saying that Court is not powerless to refuse to issue summons to defence witnesses, when it appears to the Court that by filing a long list of witnesses unconnected with the case, accused tries to delay the proceedings. Counsel contended that in the present case accused petitioner was given ample opportunity to adduce defense witnesses. He did not avail those opportunities. Thereafter, he filed a long list of witnesses without proper address of those witnesses only with the purpose of delaying the proceedings of the case.
Judgment : Learned senior counsel representing the petitioner had contended that the Apex Court in a catena of decisions has held that the right of accused to adduce evidence in support of defense is a part of fair trial which cannot be denied to him.
According to Section 243 Cr.P.C. After the accused in a case has entered upon his defense and applies to the Magistrate to issue a process for compelling the attendance of any witness it is obligatory on the part of the Magistrate to issue such process. Magistrate can refuse the request to issue summons to the witness on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.
The court held that the reasons assigned by the trial Court as well as by the learned Sessions Judge for refusing the prayer of the accused for issuing summons to his witnesses are not acceptable.Therefore, he should be allowed fair and proper opportunity to prove his innocence. Adducing evidence in support of his defense is a valuable right of his which cannot be denied to him.
It is true that accused should not be allowed to unnecessarily protract the trial or request the Court to issue summons to the witnesses whose evidence would not at all be relevant for deciding the case. In such situation the trial Court may discard the petition of the accused on the ground of vexation and delay. In the case in hand, no such ground has been assigned by the trial Court for refusing to issue summons to the witnesses of the accused
JUDGMENT REVIEWED BY : SHUBHANGI CHAUDHARY