The Madhya Pradesh High Court has affirmed a foundational principle of criminal justice: an accused person must be granted a meaningful opportunity to present their defence, including the right to examine themselves as a witness. This ruling reinforces that procedural fairness is not a formality but a constitutional imperative, especially in cases involving serious financial offences like cheque dishonour under Section 138 of the Negotiable Instruments Act.
Background & Facts
The Dispute
The petitioner, Shabbir Hussain, proprietor of Badshah Trader, Ujjain, is facing trial for an offence under Section 138 of the Negotiable Instruments Act. The case arose from a dishonoured cheque issued to the respondent, Sewakram and Sons. At the stage of defence evidence, the petitioner sought to examine himself as a defence witness to tender documents supporting his claim that the cheque was issued as security and not for discharge of a legally enforceable debt.
Procedural History
- 04.08.2025: Trial court erroneously adjourned the matter for complainant’s evidence, despite defence evidence being due.
- 26.08.2025: Court corrected the error and fixed the date for defence evidence.
- 09.09.2025: Petitioner filed application under Section 353 of the BNSS, 2023 to examine himself as a defence witness.
- 26.09.2025: Judicial Magistrate rejected the application, citing that the opportunity to lead defence evidence had been closed on 26.08.2025.
Relief Sought
The petitioner sought quashing of the Magistrate’s order and a direction to permit him to examine himself as a defence witness, arguing that the denial violated his right to a fair trial under Article 21 of the Constitution.
The Legal Issue
The central question was whether Section 353 of the BNSS, 2023 entitles an accused to examine themselves as a defence witness even after the trial court has mistakenly closed the evidence stage, provided the trial has not concluded and the accused has not been given a fair opportunity to present their defence.
Arguments Presented
For the Petitioner
Counsel for the petitioner relied on Sanjay Sharma v. S.P. Agerwal to argue that the right to examine oneself as a witness is an essential component of the right to a fair trial. She contended that the trial court’s error in initially fixing the wrong date for evidence did not extinguish the accused’s right to present his defence. The rejection of the application was arbitrary and violated the principles of natural justice.
For the Respondent
The State did not file a written response. The prosecution did not oppose the petition orally, and the court noted the absence of any substantive counter-argument challenging the petitioner’s entitlement under Section 353.
The Court's Analysis
The Court examined the procedural record and found that the trial had not concluded. The Magistrate’s order was based on a misapprehension that the evidence stage had been formally closed. The court emphasized that Section 353 of the BNSS, 2023 explicitly permits an accused to be examined as a witness, and this right cannot be curtailed merely because of a procedural misstep by the trial court.
"The denial of opportunity to lead the evidence is against the fair and complete adjudication of matter in issue."
The Court held that the accused’s right to present his defence is not contingent on the trial court’s administrative accuracy. The court invoked its inherent jurisdiction under Section 482 of the CrPC, now subsumed under Section 528 of the BNSS, to correct manifest injustice. It distinguished between procedural closure and substantive finality, noting that the latter had not occurred. The Court further observed that the accused’s testimony could materially affect the outcome, particularly in cases where documentary evidence is central to the defence.
The Verdict
The petitioner succeeded. The Madhya Pradesh High Court set aside the Magistrate’s order and directed the trial court to grant the petitioner one final opportunity to examine himself as a defence witness under Section 353 of the BNSS, 2023. The Court emphasized that this shall be the sole opportunity, after which the trial may proceed to final arguments.
What This Means For Similar Cases
Right to Self-Examination Is Non-Negotiable
- Practitioners must immediately raise Section 353 BNSS objections if an accused is denied the right to testify, even if the court claims evidence is closed.
- The burden shifts to the prosecution to show that the accused’s testimony would prejudice the trial or cause undue delay - mere procedural error is insufficient.
Procedural Mistakes Do Not Nullify Substantive Rights
- Trial courts cannot use their own administrative errors to deny constitutional rights.
- Defence counsel should file applications under Section 353 at the earliest opportunity and preserve the record of all adjournments and corrections.
Documentary Defence Requires Testimonial Support
- In Section 138 NI Act cases, where the accused claims the cheque was issued as security, self-examination is often critical to explain context.
- Courts must not treat the accused’s testimony as inherently unreliable; it is a statutory right, not a discretionary privilege.
