The Allahabad High Court has reaffirmed the fundamental right of an accused to summon defence witnesses under Section 233 of the Code of Criminal Procedure, holding that trial courts cannot refuse such applications without specific grounds of vexation, delay, or defeating justice. The judgment underscores the principle of fair trial and the accused's statutory right to adduce defence evidence, setting aside a trial court order that arbitrarily denied this right.
Background & Facts
The Dispute
The applicants, Wasiuddin @ Wasi Udiya and another, are facing trial before the Sessions Judge, Firozabad, in Session Trial No. 84 of 2015 arising from Case Crime No. 585 of 2014 under Sections 147, 148, 149, 307, and 302 of the Indian Penal Code. The charges carry a maximum punishment of death penalty. The trial has been pending since 2014, and the applicants were not acquitted under Section 232 CrPC, entitling them to adduce defence evidence under Section 233 CrPC.
Key Facts
- The applicants are accused in a criminal trial involving serious offences, including Section 302 IPC (murder)
- The trial has been ongoing since 2014, with the prosecution evidence completed
- On 21.4.2026, the applicants filed two applications before the trial court:
- Application No. 163B: Seeking permission to file certified copies of documents
- Application No. 164B: Seeking issuance of summons to defence witnesses
- The trial court partly allowed Application No. 163B but rejected Application No. 164B vide order dated 21.4.2026
- The applicants argued that the rejection of Application No. 164B prejudiced their right to a fair trial
Procedural History
- 2014: Case Crime No. 585 registered under Sections 147, 148, 149, 307, 302 IPC
- 2015: Session Trial No. 84 initiated before Sessions Judge, Firozabad
- 21.4.2026: Applicants filed Application Nos. 163B and 164B
- 21.4.2026: Trial court partly allowed Application No. 163B but rejected Application No. 164B
- 2026: Present application under Section 528 BNSS filed before Allahabad High Court seeking quashing of the impugned order
Relief Sought
The applicants sought:
- Quashing of the trial court's order dated 21.4.2026 rejecting Application No. 164B
- Directions to the trial court to issue summons to the defence witnesses listed in Application No. 164B
- Ensuring a fair trial in accordance with Section 233 CrPC
The Legal Issue
The central question was whether a trial court can refuse an accused's application for summoning defence witnesses under Section 233 CrPC without recording reasons that the application was moved for vexation, delay, or defeating the ends of justice.
Arguments Presented
For the Applicants
- Contended that Section 233 CrPC grants an absolute right to the accused to summon defence witnesses, and the trial court's refusal without valid grounds violates this right
- Argued that the rejection of Application No. 164B prejudiced their defence and defeated the principle of fair trial
- Emphasized that the trial court did not record any reasons under Section 233(3) CrPC to justify the refusal
For the Respondent/State
- Opposed the prayer, arguing that Application No. 164B was moved to cause delay in the trial, which has been pending since 2014
- Submitted that Application No. 163B was already allowed, permitting the applicants to file certified copies of documents
The Court's Analysis
The Court undertook a detailed examination of Section 233 CrPC, which governs the accused's right to adduce defence evidence. The provision states:
"233. Entering upon defence. (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."
The Court observed that Section 233 CrPC is a critical component of the fair trial guarantee, ensuring that the accused has an opportunity to present their defence. The provision explicitly limits the trial court's discretion to refuse such applications only on three grounds: vexation, delay, or defeating the ends of justice. The Court noted:
"Undoubtedly, this right has been given to the defence to produce its witnesses as part of fair trial and as part of legal principle of hearing both the sides. In my opinion, here the right belongs to the accused and not to the court concerned, in the sense that the court concerned shall ordinarily issue process and can decline to summon the witness only for the reason that the request is made for the purpose of vexation or delay or for defeating the ends of justice."
The Court distinguished the powers of the court under Section 311 CrPC (which grants discretion to summon witnesses) from the rights of the accused under Section 233 CrPC. While Section 311 CrPC vests discretion in the court, Section 233 CrPC confers a right upon the accused, and the court's interference is limited to the three grounds specified in the provision.
The Court held that the trial court's impugned order rejecting Application No. 164B was unsustainable in law, as it did not record any reasons under Section 233(3) CrPC to justify the refusal. The Court emphasized that the right to summon defence witnesses is not merely procedural but a substantive right essential for a fair trial.
The Verdict
The Allahabad High Court allowed the application under Section 528 BNSS, setting aside the impugned order dated 21.4.2026 to the extent it rejected Application No. 164B. The Court directed the applicants to move a fresh application before the trial court within 10 days for issuance of summons to defence witnesses. The trial court was directed to consider and decide the application in accordance with law, without granting undue adjournments to either party.
What This Means For Similar Cases
The Accused's Right to Defence Witnesses Is Absolute
- Trial courts cannot refuse applications for summoning defence witnesses under Section 233 CrPC without recording reasons that the application was moved for vexation, delay, or defeating the ends of justice
- The right to adduce defence evidence is a fundamental aspect of fair trial, and arbitrary refusals by trial courts will be set aside on appeal
Procedural Safeguards Must Be Followed
- Trial courts must strictly adhere to the procedural requirements under Section 233(3) CrPC and record reasons if refusing an application for defence witnesses
- Practitioners should ensure that applications for defence witnesses are meticulously drafted and supported by necessary details to avoid allegations of delay or vexation
Implications for Pending Trials
- This judgment reinforces the principle that prolonged trials cannot be a ground for denying the accused's right to defence evidence
- Accused persons in similar situations should challenge arbitrary refusals by trial courts, as higher courts are likely to intervene to uphold fair trial guarantees
